Petition — Wainwright v. Hutchins

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2 3 - 1 1 02 Office - Supreme Court, U.S

FILED

JAN 3 1934

ALEXANDER L. STEVAS,

No “ CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

LOUIE L. WAINWRIGHT,

Petitioner,

Vs.

MICHAEL HUTCHINS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE ELEVENTH C'RCUIT COURT OF APPEALS

AND APPENDIX

BRIEF OF PETITIONER ON JURISDICTION

JIM SMITH

Attorney General

PENNY H. BRILL

Assistant Attorney General

Department of 'egal Affairs

401 N.W. 2nd Avenue (820)

Miami, Florida 33128

(305) 377-5441

QUESTIONS PRESENTED

1. WHETHER THE COURT OF

APPEALS IN ITS INTERPRETATION

OF ANDERSON V. HARLESS,

U.S. , 103 S.CT. 276 (1982)

AND PICARD V. CONNOR, 404

U.S. 270 (1971) HAS ABROGATED

THIS COURT'S STANDARDS FOR

DETERMINING WHEN A HABEAS

CORPUS PETITIONER HAS "FAIRLY

PRESENTED" TO THE STATE

COURTS THE "S BSTANCE" OF H’S

FEDERAL HABEAS CORPUS CLAIM,

PARTICULARLY IN LIGHT OF A

CONFI.ICT AMONG THE CIRCUITS

AS TO WHAT STANDARDS SHOULD

BE APPLIED IN DETERMINING

WHETHER A CONSTITUTIONAL

CLAIM HAS BEEN EXHAUSTED?

2. WHETHER A CLAIM THAT A

PROSECUTOR'S COMMENTS IN

CLOSING ARGUMENT WERE IMPRO-

PER BECAUSE THEY WERE NOT

BASED ON EVIDENCE BEFORE THE

COURT AND THUS VIOLATED THE

DEFENDANT'S RIGHT TO A FAIR

TRIAL, IS THE SUBSTANTIAL

EQUIVALENT TO A CLAIM THAT

THE DEFENDANT'S SIXTH AMEND-

MENT RIGHT TO CONFRONT WIT-

NESSES WAS VIOLATED?

TABLE OF CONTENTS

QUESTIONS PRESENTED.......-ese00. i

TABLE OF AUTHORITIES.......cce0. iit

PREFACE... cc ccccccccccccccccccces 1-2

OPINIONS BELOW.......cceevccecces 3-4

JURISDICTION...... Terre rrrr eee 5

CONSTITUTIONAL PROVISIONS

AND STATUTES. eevee ee eoeeeeeeeeenee 4

STATEMENT OF THE Dibeéeaesececees 7-22

REASON FOR GRANTING

THE EE 23-48

CONCLUSION..... *enee *eeeneeeneeeee 49

iii

TABLE OF AUTHORITIES

CASES

Adams v. State,

192 So.?d 76? (Fla.

, Per PVvrrrrevrigy: .

Anderson v. Harless,

U.8. , 103 SiCe.

276, (THEA 64 6cccceestoens

28,

Berger v. United States,

295 U.S. 78 (1934) .c.cccees

Blankenship v. Estelle,

545 F.2d 510 (5th

Cir. 1977) cert.denied

444 U.S, 856 (T979).......

Brown v. Cuyler,

669 F.2d 155 (3d

Cir. OSE cc cccccesesstées

California v. Greene,

399 U.S. 149 (1969)......4.

Connor v. Auger,

595 F.2d 407 (8th

Cir. TUTE? 06 066bebeoeeséoens

PAGE

2e.

29, a

40, 41

TABLE OF AUTHORITIES

N D

CASES

Daye v. Attorney General of

of the State of New York,

696 F.2d 186, 198

(2d Cir. 1982)(en banc)

(Van Grafeilant, J.

GESOOREINE) ccccccsccececes

Domaingue v. Butterworth,

641 F.2d & (ist Cir.

De) abbas 6666400680006 006

Duckworth v. Serrrano,

454 U.S. 1, 102

S.eGe- 18 CUE) ct ebecs oe ees

Dutton v. Evans,

400 U.S. 74 CTSTO) ke ccaecnd

Ex parte Hawk,

321 U.S. 114 CTDPOSD cdc eoee

Ex parte Royall,

117 U.S. 241 CTERS) ceccses

Favre v. Henderson,

464 F.2d (5th Cir.)

ecert.denied 409 U.S.

PAGE

23, 47

40, 41

TABLE OF AUTHORITIES

CONTINUED

CASES

Fillipini v. Ristaino,

585 F.2d 1163 (1st

Cle « 1978) “ee eee “ee eeneenenee

Gayle v. LeFebre,

613 F.2d 21 (2d Cir.

i eee es

Goddard v. State,

143 Fla. 28, 196

So. 596 CIGSS) coccccesoees

Hagins v. Warden,

Fort Pillow State Farm,

715 F.2d 1050 (6th

Cir. 1983) .ccccccccccccees

Hall v. Lowa,

705 F.2d 283 (8th Cir.

1DSS) cccceccccccececsosese

Hill v. Zimmerman,

709 F.2d 232 (3d Cir.

1983) wccccccccccccccoccocs

Holleman v. Duckworth,

700 F.?d 391 (7th Cir.

1983) wecccccccceccceeseees

PAGE

TABLE OF AUTHORITIES

CONTINUED

CASES PAGE

Hudson v. Rushen,

686 F.2d 826 (9th Cir.

er Sa aee ee ivexe tee 32

Hutchins v. State

349 So.2d 1237 (Fla. 3d

DCA 1977) oseeeeevneae eee eeeeeee 4, 15

Hutchins v. Wainwright,

715 F.2d 512 (1lth Cir.

ee eevee eenenene eeee 3 7

James v. State,

334 So.2d 83 (Fla. 3d

DCA 1976).. e**eeee *enseeee ee ewe#e 14

Johnson v. State,

88 Fla. 461, 102

So. 549 to ee 13

Jones v. Hess,

681 F.2d 687 (10th Cir.

DF? ¢d¢e¢bo6sdessnekseu Canes 33

Moore v. Duckworth,

581 F.2d 639 (7th Cir.

1978) aff'd 443 U.S.

TOY EPS Ecc cccotesessvecsss | SH

vii

TABLE OF AUTHORITIES

CONTINUED

CASES PAGE

Nelson v. Solen,

714 F.2d 47 (8th Cir.

TUOS) cevcveseveces Sceeteocss 32

Ohio v. Roberts,

See -B.G8. SO CSCC) iccesvwes 41

Paulet v. Howard,

634 F.2d 117 (3d Cir.

1980).... oeeeeeee oeeeeeeeae 29

Picard v. Connor,

406 U.S. 270 (1981) vecccces i.

a3; 22> ae

Richardson v. State,

335 So.2d 835 (Fla.

4th DCA TEPOd ceeetedtesd ease 13

Rose v. Lundy,

455 U.S. 509, 102 S.Ct.

1198 (1982) ..cccccccccccece 23

Santana v. Felton,

685 F.2d 71 (3d Cir.

SEES bo Ober tdececdvsensecseese 29

Silvestri v. State,

332 So.?d 351 (Fla.

4th DCA TRIO) 0 ceddeesnwtuse 14

viii

TABLE OF AUTHORITIES

CONTINUED

CASES PAGE

Stanley v. Illinois,

405 U.S. 645, n.10..... cece 25

Steele v. Taylor,

684 F.2d 1193 (6th Cir.

1982) ccccccccccscccese pececee 30

(iON orcs scrwant pe ae 35

Thomas v. Wyrick,

623 F.2d 411 (8th Cir.

1980) .. cc ceecees cocccccccce 32

Thompson v. State,

318 So.2d 549 (Fla.

4th DCA 1975) ..ccccee coccee 14

Toney v. Franzen,

687 F.?d 1016 (7th Cir.

i, a ere eer eer 30

United States ex rel

Nance v. Fairman,

707 F.2d 936 (7th Cir.

19S 2) a ckececessebuseekeeeee 30

TABLF OF AUTHORITIES

CONTINUED

CASES PAGE

United States v. Phillips, -

664 F.2d 971 (5th Cir.

1981), cert.denied,

LEDER P vccccceccece eg 42

United States v. Ragano,

476 F.2d 410 (Sth Cir.

TOFS) ccccccccccecses eecccce 46

United States v. Vera,

701 F.2d 1349 (11th

gg ee 42

Webb v. Webb,

EG) ) be 22, 36

Webster v. Frey,

665 F.2d 88 (6th Cir.

EEE Te 30

Wilks v. Israel,

627 F.?d 37? (7th Cir.

EEE Ee a ee 30

Williams v. Holbrook,

AQ1 F.2d 3% (1st

CER, FOR) cccccccccccsccccs 27

TABLE OF AUTHORITIES

CONTINUED

CASES PAGE

Zicarrelli v. Gray,

543 F.2d 466 (3d Cir.

1976) wccvcccccces eoccccccce 29

CONSTITUTIONAL PROVISIONS:

Fifth Amendment, United States

oa EL WTYTT TTT 6, 19

Sixth Amendment, United States

Gomstitutiot..cosceces coceceees ° -

| ae | ale >

39, 40, 45

Fourteenth Amendment, United

States Constitution......... see -

STATUTES :

28 U.S.C. $1254(1) ccccccccces oe 5

TABLE OF AUTHORITIES

CONTINUED

STATUTES :

28 U.S.C. SI2Z5S7 .cccce ce cccccces

28 U.S.C. $2254... ccccccccccves

28 U.S.C. $2254(b) ...... socccce

OTHER AUTHORITIES:

Desmond, Federal Habeas

Corpus Review of State

Court Convictions-Pro-

posals for Reform, 9 Utah

L.Rev. 18 (1974) ..ccccccccccces

Yackle, The Exhaustion Doc-

trine in a Federal Habeas

Corpus: An Argument for a

Return to First Principle,

44 Ohio State L.J. 393 (1983)..

Letter from Chief Justice

Hughes, March 23, 1937,

quoting John Rutledge of

South Carolina, reprinted in

81 Cong.Rev. 2814-2815 (1937)..

PAGE

PREFACE

The Petitioner, Louie L. Wainwright

was the Appellant in the Eleventh Circuit

Court of Appeals and the Respondent in

the United States District Court for the

Southern “istrict of Florida. The Re-

spondent, Michael Hutchins, was the Ap-

pellee in the Eleventh Circuit Court of

Appeals and the habeas petitioner in the

United States District Court. For

clarity, in this brief, the parties will

be referred to as the State and the

Defendant.!

The following reference is made in

this brief:

IThe only other interested party would

be Jim Smith, Attorney General for the

State of Florida.

(A) For the portions of the record

below sufficient to show jurisdiction in

this Court, which are contained in the

Petitioner's Appendix and consists of

pages Al-A195.

OPINIONS BELOW

The judgment and opinion of the

Eleventh Circuit Court of Appeals is

reported at Hutchins v. Wainwright,

715 F.2d 512 (11th Cir. 1983), and is

contained in the State's Appendix at "A

3-A34." The opinion of the United States

District Court for the Southern District

of Florida, granting the petition for

writ of habeas corpus, and the Report of

the 'nited States Magistrate, which was

adopted in the District Court's opinion

is contained in the State's appendix at

"A37-A38" and "A47-A86 is unreported.

The opinion of the United States District

Court for the Southern “istrict of

Florida, dis-missing the "efendant's

first petition for writ of habeas corpus

without prejudice for exhaustion of state

remedies is contained in the State's

Appendix at "A42-A46," and is also

unreported. The per curiam affirmance

without opinion of the Ratenidit*s

conviction and sentence is reported at

Hutchins v. State, 349 So.2d 1237 (Fla.

3d DCA 1977) and is contained in the

State's Appendix at "A87-A8&,"

JURISDICTION

On September 19, 1983, the United

States Court of Appeals for the Eleventh

Circuit, affirmed the United States Dis-

trict Court's granting of the Defendant's

Petition for Writ of Habeas Corpus. The

State petitioned for rehearing. The pe-

tition for rehearing was denied on

November 2, 19°83. (A35-A36). The

jurisdiction of this Honorable Court is

invoked pursuant to the specific provi-

sions of Title 28 U.S.C. §1254(1), and

Amendments VI and XIV of the United

States Constitution.

Ill

CONSTITUTIONAL PROVISIONS

AND STATUTES

The constitutional provisions and

statutes controlling the disposition of

this cause are lengthy. See Amendments

V, VI, and XIV of the Constitution of the

United States; Title 28, United States

Code, Section 1257; Title 28, United

States Code, Section 2254. The pertinent

text of each, set out verbatim appears in

the Appendix at pages A&9-A93,

STATEMENT OF THE CASE

This is a Petition for Certiorari

from the opinion of the Court of Appeals

for the Eleventh Circuit, in which the

Court affirmed the granting of the Defen-

dant's Petition for Writ of Habeas Corpus

arising from his State convictions and

sentences for armed robbery and assault

with intent to commit second degree

murder. Hutchins v. Wainwright, 715 F.2d

512, 514 (llth Cir. 1987). (A3-A34).

The charges against petitioner arose

from a taxicab robbery on July 17, 1975.

The only witness identifying petitioner

as the robber was the driver. Peti-

tioner's defense was misidentification.

There was no other corroborating testi-

mony or evidence.

In his opening statement, the pro-

secutor proffered to the court that he

did not intend to elicit the details of |

the conversations between the detective |

and this individual, but was going to

tell the jury what the detectives did,

based on any conversations they may have

had with this unkown young black male.

The prosecutor also advised the court

that the officers received infor-

mation from this individual under a

promise not to reveal his name, and had

declined to give the prosecutor any

identifying information. The court ruled

that the prosecutor could "inquire of the

officer simply as a result of his

investigation what did he do." 715 F.2d

at 514-515.

During direct examination of the

detectives, testimony was elicited over

the “efendant's objections, that the

detectives had met with a young black

male in the area where the incident

occurred and that they later drove with

him to the area, which was later revealed

to be the "efendant's address. Id, at

515.

™ his closing argument, the prose-

cutor made references to the contacts

with the unidentified informant, as the

following excerpts demonstrate:

Mr. Goldstein: He testified

he went to 1840 Northwest

60th Street, and you remember

later on, that is where the

Defendant lives.

He testified that he got out

of the car, and he conducted

an investigation on the scene

there, that he went back to

his office, and he made out

this photo display, and put

the photograph of Michael

Hutchins in the photo dis-

play, and put the photograph

of Michael Hutchins in the

photo display, and the detec-

tive went to the hospital....

* * *

Then afterwards the detective

got out a warrant; went to

the State Attorney's Office;

went to a judge; got a

warrant for Michael Hutchins’

arrest; went back to that

address, and where was the

address? ‘*840 Northwest 60th

Street,

The prosecutor went on to explain

the absence of the unidentified witness

by saying "[{a] crime of this nature

creates fear" and that "people who have

the fear do not want to get involved ***

[t]hey do not want to physically face the

accused," The prosecutor further urged

the jury "not only to rely on what you

have heard here," which was described as

"the tip of the iceberg,” but "to

consider all the circumstances involved

in this crime." 715 F.2d at 515.

The Defendant appealed his convic-

tion to the District Court of Appeal,

Third District, raising two grounds: ("')

that “the trial court erred in excluding

the testimony of the only defense witness

on the ground of irrelevancy where the

defendant proffered that this testimony

was relevant to the identity of the per-

petrator of the crime and would exculpate

the defendant, thereby violating the

defendant's due process right to pre-

pare and present a defense under the

Sixth and Fourteenth Amendments to the

constitution of the Untied States..." and

(?) that “the trial court erred in al-

lowing prosecutorial comments regarding

the investigating officers encounters

with an unidentified third person to per-

vade the entire trial, where the only

purpose of this argument was to lead the

jury to draw the impermissible inference

that this third person had identified the

defendant as the perpetrator of the

charged crime, but was afraid to testify

in court." (A144-A145). In support of

this allegation of error, the Defendant

cited state cases that admonished prose-

cutors from making comments that could

not be reasonably inferred from the

evidence or which were inflammatory and

calculated to raise passion or prejudice

in the minds of the jury. (A162-A171).

None of these cases contained any re-

ference to any hearsay or confrontation

clause claims.2 The Defendant was

2Adams v. State, 192 So.2d 7A? (Fla.

1966) (comments by prosecution that

equated victim of homicide to wives and

relatives of jurors, and that defense

counsel's statements "perverted and

distorted things" and "violated his oath

as a lawyer and human being "were unduly

prejudicial and constituted error);

Goddard v. State, 143 Fla. 28, 196 So.

prosecutor's statements that

defendant was “low down scoundrel" and

"skunk" and there has never been an ounce

of remorse in the "no good black heart of

that scoundrel"; although improper, held

not reversible in light of overwhelming

evidence); Johnson v. State, 88 Fla. 461,

102 So. 549 (1924) (prosecutor's reference

to the defendant that he "went out there

for what cats and dogs fight for," and

"is a brute", were reversible error);

Richardson v. State, 335 So.2d 835 (Fla.

4th DCA 1976)(prosecutor's remarks that

he "could have brought in a lot of police

especially concerned with the prose-

cutor's explanation as to why the young

biack male did not testify, and his

request to the jury to not only rely on

what they heard, but to consider all the

circumstances. (A168-A169).

The State in response, argued in its

brief that the prosecutor properly argued

officers’ and that case could have lasted

longer constituted reversible error);

James v. State, 334 So.2d 83 (Fla. 3d DCA

1976) (prosecutor's remark that pushers

infest other individuals with his disease

heroin although improper, was not so pre-

judicial as to require a mistrial);

Silvestri v. State, 332 So.2d 351 (Fla.

4th DCA 1976) (prosecutor's remark that

the state's key witnesses were "obviously

able to convince the police of their

truthfulness or they would have been the

ones on trial was prejudicial error);

Thompson v. State, 318 So.2d 549 (Fla.

4th 5A 1975) (prosecutor's comment, con-

cerning additional witnesses who could

have been called were prejudicial in that

they lead the jury to believe that there

was other evidence).

the facts which were established at trial

and which were reasonably inferred from

the facts established. The State cited

to the portions in the transcript in

which the two officers testified about

their contact with the young black male.

(A178-A181).

The Third District Court of Appeal,

per curiam affirmed the Defendant's con-

viction, without an opinion. Hutchins v.

State, 349 So.2d 1237 (Fla. 3d DCA 1977).

Subsequently, Defendant filed a motion

for post-conviction relief in the state

trial court, alleging a violation of his

state right to a speedy trial. The

motion was denied by the trial court and

no appeal was taken.

The Defendant then filed a pro se

petition for writ of habeas corpus in the

federal district court. In the petition,

four issues were raised: (1) denial of a

speedy trial; (2) exclusion of defense

evidence; (3) suppression by the prose-

cution of favorable evidence; and (4) the

unconstitutional admission of hearsay

testimony. The trial court dismissed the

petition without prejudice concluding ._ —

that only two of the four grounds had

been exhausted. One of the two grounds

held to have been exhausted was the claim

of the unconstitutional admission of

hearsay testimony. (A43-A45). Hutchins

v. Wainwright, supra at 517. The Defen-

dant did not file any further motions or

petitions in the state court.

The Defendant filed instead a second

petition for writ of habeas corpus in the

federal court. The efendant alleged

three grounds for relief: (1) the trial

court's denial of defense counsel's

request to produce a witness (7) the

unconstitutional admission of hearsay

testimony; and (3) the unconstitutional

failure of the peosseution to disclose

evidence favorable to the defense. 715

P26 at $7.

After a response by the State, which

conceded that the first two claims had

been exhausted, but not the third, the

Nefendant waived his claims of speedy

trial and on the failure to disclose

favorable defense evidence. The Defen-

dant now with counsel, filed a

memorandum of law on the two claims which

were alleged to be exhausted, and pre-

sented the claims to the federal court as

follows:

A. The exclusion by the

trial court of relevant and

material exculpatory evidence

offered by petitioner, in

violation of the Compulsory

Process Clause of the Sixth

Amendment and the Due Process

Clause of the Fourteenth

Amendment to the Constitution

of the United States.

B. The admission by the

trial court of incriminating

out-of court statements of an

unidentified and undisclosed

informant, in violation of

the Confrontation Clause of

the Sixth Amendment and the

Due Process Clause of the

Fourteenth Amendment to the

Constitution of the United

States.

715 F.2d at 518,

The State then filed a response to

this memorandum, alleging that its prior

concession that the claim of unconstitu-

tional admission of hearsay had been ex-

hausted was erroneous. Id. The State

asserted that not only was a confronta-

tion clause claim never presented to the

state appellate court, but neither was

the claim framed in terms of admission of

hearsay evidence. 3 Rather, the State

alleged that only a fifth amendment due

process claim of prosecutorial misconduct

had been raised. (A101-A106). The claim

was therefore either waived under state

procedural rules or was unexhausted. 715

F.2d at 518.

30ne of the grounds for the State's

petition for rehearing in the Eleventh

Circuit was the court's misstatement of

the fact that the State had asserted that

the Nefendant had raised a hearsay clain,

but not a confrontation clause claim.

(A117-A121).

The magistrate concluded that the

confrontation clause claim was properly

before him and recommended granting the

writ of habeas corpus on the grounds that

the admission of the hearsay testimony

and the prosecutor's comments in closing

argument referring to the testimony about

the anonymous informant violated the

Defendant's rights under the confronta-

tion clause of the Sixth Amendment. 715

F.2d at 518. (A61-A63). The dis-

trict court adopted this recommendation.

Id. (A37-A38).

The State appealed to the Eleventh

Circuit Court of Appeals. The Court of

Appeals affirmed holding that "the issue,

as presented on direct appeal, albeit

obliquely stated, did sufficiently alert

the state court to a confrontation

issue." Hutchins v. Wainwright, supra at

519. Although, not condoning the matter

in which the claim was presented to the

state courts, and noting the inartful

wording of his brief, the Eleventh

Circuit held that the substance of the

“efendant's claim was that the prosecu-

tion obtained an unfair advantage by

effectively introducing into evidence the

out-of-court statements of the unidenti-

fied informant, and relied upon those

statements as evidence of guilt. Because

this is what the confrontation clause was

designed to prohibit, the substance of

the claim had been presented to the state

appellate court. Id.

The State filed for rehearing on the

grounds of misstatement of facts and

the improper application of this Court's

opinions in Anderson v. Harless, U.S.

___, 103 S.Ct. 276, (1982); Webb v. Webb,

451 U.S. 493 (1981), and Picard v.

Connor, 404 U.S. 779 (1981). (A117-

A121. Rehearing was denied (A35-A36) and

the State moved for a stay of the man-

date. The Eleventh Circuit granted the

motion for state of the mandate, pending

review in this Court. (A94-A95).

4cee footnote 3, supra.

REASONS FOR GRANTING

THE PETITION

For almost one hundred years, this

Court has required that a State prisoner

must normally exhaust available state

remedies before a writ of habeas corpus

can be granted by the federal courts.”

™Tn Rose v. Lundy, 455 U.S. 509, 102 S.Ct.

1198, 1204 (1982), this Court held that

this requirement, now codified in 28

U.S.C. §2254(b) provides a "straightfor-

ward exhaustion requirement," a "simple

5See Ex parte Royall, 117 U.S. 241

(T8886); Ex parte Hawk, 321 U.S. 114

(1944); Picard v. Connor, 404 U.S. 270

(1971); Duckworth v. Serrrano, 454 U.S.

{, 102 3.CE. TS CiFe' )-

and clear instruction to potential

litigants" that before they bring any

claims to federal court they should have

first taken each claim to the state

court. However, from a review of the

opinion by the Court of Appeals in the

instant case and of other circuit courts

of appeal, it is clear that in actual

practice the “simple and clear

instruction" has often been ignored and

the application of the exhaustion

requirement has been less than

"straightforward."© For this reason

this Court should accept jurisdiction.

6See Daye v Attorney General of the

State of New ork, 696 F.2d 186, 198 (7d

Cir. 1982)(en banc) (Van Graafeiland, J.

dissenting).

WHEN HAS A FEDERAL HABEAS

CORPUS PETITIONER "FAIRLY

PRESENTED" TO THE STATE

COURTS THE "SUBSTANCE" OF HIS

FEDERAL HABEAS CORPUS CLAIM.

In Picard v. Connor, 404 U.S. 270,

276-277 (1971), this Court held that the

principles of comity, require that a

federal habeas petitioner provide the

state courts with a fair opportunity to

apply controlling legal principles to the

facts bearing upon his constitutional

claim. A petitioner need not cite a

"book and verse on the federal constitu-

tion," but the substance or the substan-

tial equivalent of the federal claim must

first be fairly presented to the state

courts. Id. at 275, 277-278. In

Stanley v. Illinois, 405 U.S. 645, 658

n.10, this Court looked to the method of

analysis "to determine the substance of

the claim. Ten years later, in Anderson

v. Harless, _U.S.__, 103 S.Ct. 276,

(1982), this court reaffirmed this prin-

ciple, adding that "it is not enough that

all the facts necessary to support the

federal claim were before the State

courts," or "that a similar state-law

claim was made," Id. at 277. Further-

more, this Court doubted that "a defen-

dant's citation to a state-court decision

predicated solely on state law will be

sufficient to fairly apprise a reviewing

court of the potential federal claim

merely because the defendant in the cited

case advanced a federal claim. Id. at

2778 n.3.

The circuit courts of appeal have

interpreted these decisions in a variety

of ways to determine whether the sub-

stance of a federal claim has been fairly

presented to the state courts.

The First Circuit requires that the

federal habeas corpus petitioner to have

presented the state courts with all the

zfacts and the same governing legal argu-

ments, but allows some reformation of the

claims so long as the effect is not to

transform the claim or cast it in signi-

ficantly different light.’ The Second

Circuit has adopted a more expansive in-

terpretation of when the substance of a

7Williams v. Holbrook, 691 F.2d * (1st

Cir. 1982); Domaingue v. Butterworth, 641

F.2d 8 (ist Cir. 1981); Fillipini v.

Ristaino, 585 F.2d 1163 (1st Cir. 1978).

federal claim has been presented.8 The

Second Circuit adopted a four part test;

whether the petitioner relied on perti-

nent federal cases employing a constitu-

tional analysis: relied on State cases

employing constitutional analysis in like

fact situations: asserted the claims in

terms so particular as to call to mind a

specific right protected by the constitu-

tion: or alleged a pattern of facts that

is well within the mainstream of consti-

utional litigation.?

8Daye v. Attorney General of the State

of New York, supra.

9Iinterestingly, the Second Circuit in

its en banc decision in Naye, rejected

its prior decision in Gayle v. LeFebre,

613 F.2d 21 (2d Cir. 1980) which had ~

imposed a requirement that the constitu-

tional claim have been plainly labeled as

such to the state court. Gayle v.

LeFebre was cited with approva y this

Court in Anderson v. Harless, _U.S.__,

Foe Bsc. Ba ett

The Third Circuit has held that

exhaustion requires not only the facts

and the cases, but a focus on the con-

stitutional claim, especially where the

two issues have much in common and one

may lie in the shadow of the other with-

out being observed.!9 The Fifth Circuit

recognizes that a petitioner has pre-

sented his claim to the state court if it

is one that the courts have long been put

on notice implicates federal constitu-

tional rights.!! The Sixth Circuit after

this Court's decision in Anderson

10Hill v. Zimmerman, 709 F.2d 232 (3d

Cir. 1983). Santana v. Felton, 685 F.2d

71 (3d Cir. 1982); Brown v. Cuyler, “49

F.2d 155 (3d Cir. 1982); Paulett v.

Howard, 634 F.2d 117 (?d Cir. T98%);

Zicarrelli v. Gray, 543 F.2d 466 (3d Cir.

11lBlankenship v. Estelle, 545 F.2d 510

(5th Cir. 1977) cert.denied 444 U.S. 856

(1979).

v. Harless, supra, has held that a state

will not be held to have perceived a con-

stitutional claim each time a litigant

cites analogous state law. !2

The Seventh Circuit like the First

Circuit requires the same legal theory,

but with a minor variation.!3 However

the Seventh Circuit requires that the

petitioner inform the state of the

factual basis and to have argued that the

facts violated his constitutional rights.

\2Happins v. Warden, Fort Pillow State

Farm, 5 F.2d 1050 (6th Cir. 1983). See

also Steele v. Taylor, 684 F.2d 1193 (6th

Cir. 1982); Webster v. Frey, 665 F.2d 88

( th Cir. 1981).

13tmited States ex rel Nance v.

Fairman, 707 F.2d 936 (7th Cir. 1983);

Holleman v. Duckworth, 700 F.2d 391 (7th

T. ; Toney v. Franzen, 687 F.2d

1016 (7th Cir. 1982); Wilks v. Israel,

627 F.2d 32 (7th Cir. 1982).

However, because the federal courts must

apply the exhaustion test with caution,

novel claims, or ones that have a dif-

ferent focus, will not meet the exhaus-

tion requirement. Furthermore an

"oblique" reference to a constitutional

issue will not have fairly presented the

issue to the state court. !4

Although the Eighth Circuit has

recognized that the citation to a case

presented on the same federal ground as

that contained in the federal petition is

sufficient for exhaustion,!5 . 1983);

the court has also required that the

(7th Cir. 1978) aff'd 443 U.S. 711

(1979).

15Hall v. Iowa, 705 F.2d 283 (8th Cir.

1983).

petitioner have cited either the consti-

tution or the federal constitutional

cases in order to present his claim to

the state court.'!*® The Ninth Circuit,

while requiring the state to have the

opportunity to pass upon the petitioner's

constitutional claim, does not require

for exhaustion that the state have had

the opportunity to pass on the claim

under the particular authorities advanced

in the federal habeas court.!? The

Tenth Circuit, like the First Circuit

will not find a claim to have been

exhausted where the federal claim is

significantly dif-

ferent and more substantial than the

16Nelson v. Solem, 714 F.2d 57 (8th

Cir. 1983); Thomas v. Wyrick, 623 F.2d

411 (8th Cir. 1980); Conner v. Auger, 595

F.2d 407 (8th Cir. 1979).

17qHudson v. Rushen, 686 F.2d 826 (9th

Cir. 1982).

claim presented in the state court,!8

Finally, the Eleventh Circuit as ex-

pressed by the opinion in the instant

case adopted an analysis for determining

if the substance of the claim had been

presented, similar to that of the Second

Circuit. The Eleventh Circuit found the

pattern of facts, as argued by the state

prosecutor during his closing argument to

have fallen within the mainstream of

constitutional litigation of confronta-

tion clause analysis, despite the failure

of the petitioner to cite the sixth

amendment or the confrontation clause and

'8jones v. Hess, 681 F.2d 687 (10th

Cir. 1982).

the oblique nature in which the issue was

raised, !9

The finding by the Court of Appeals

in the instant case that an "oblique'

statement of the issues that is "inart-

fully worded" which does not cited to any

constitutional provision or federal case,

but cites only to a similar state law

claim and cases, has fairly presented the

substance of the federal constitutional

claim to the state courts is an abroga-

tion of this Court's decisions in

Anderson v. Harless, supra and Picard v.

Connor, supra. To hold that an "oblique"

statement of the issue provided the state

appellate courts with a "fair

19Hutchins v. Wainwright, 715 F.2d 512,

519 (lIth Cir. OBS) TRIOLA31) «

opportunity” to apply controlling legal

principles demeans the state appellate

process by finding that the state appel-

late judges are less competent than

federal judges to protect the constitu-

tional rights of criminal cefendants. See

Stone v. Powell, 428 U.S. 465, 493-494

n.35 (1976).29 The decision of the

Court of Appeals imposes unnecessary

burdens on its federal district courts

and does not support the policy of

federal-state comity, which underlies the

doctrine of exhaustion.

In an analogous case involving this

Court's jurisdiction under 28 U.S.C.

2%See also Yackle, The Exhaustion

Doctrine in a Federal Habeas Corpus: An

Argument for a Return to First Princi-

ple, 44 Ohio State L.J. 393 (1983);

Desmond, Federal Habeas Corpus Review of

State Court Convictions - Proposals for

Reform, 9 Utah L. Rev. 18 (1974).

§1257, this Court in Webb v. Webb, 451

U.S. 493 (1981) held:

At the minimum, however,

there should be no doubt from

the record that a claim under

a federal statute or the

Federal Constitution was pre-

sented in the state courts

and that these courts were

apprised of the nature or

substance of the federal

claim at the time and in the

manner required by the state

law.

451 U.S. at 510.

(Emphasis in original).

This view was reinforced a year later

when this Court held that "it is not

enough that all facts necessary to sup-

port the federal claim were before the

State courts... or that a similar state

law claim was made." Anderson v.

Harless, _U.S.__, 103 S.Ct. at 277.

An "oblique" statement of the issues

that is "inartfully worded" can only

leave a doubt that a federal claim was

presented to the state court. "Book and

verse" is not required but a "fair oppor-

tunity” is required. The Nefendant's

brief in the state appellate court did

not give the State court a "fair oppor-

tunity” to review the confrontation

clause issue and the Court of Appeals

erred in concluding that he had done so.

The Court of Appeals abrogation of

the exhaustion requirement as well as the

apparent diversity and conflict among the

circuits as to when a claim has been

fairly presented to the state courts,

warrants jurisdiction under this Court's

rules and the substantive law. The

express purpose of the framers of the

constitution in establishing this Court

was "to secure the national rights [and]

uniformity of Judgments." Letter from

Chief Justice Hughes, March 23, 1937,

quoting John Rutledge of South Carolina,

reprinted in 81 Cong. Rec. 2814-2815

(1937). That supreme purpose of this

Court would be properly met by the

exercise of jurisdiction herein.

A C'™AIM THAT A PROSECUTOR'S

COMMENTS IN CLOSING ARGUMENT

WERE IMPROPER BECAUSE THEY

WERE NOT BASED ON EVIDENCE

BEFORE THE COURT AND THUS

VIOLATED THE DEFENDANT'S

RIGHT TO A FAIR TRIAL IS NOT

THE SUBSTANTIAL EQUIVALENT TO

A CLAIM THAT THE DEFENDANT'S

SIXTH AMENDMENT RIGHT TO CON-

FRONT WITNESSES WAS VIOLATED.

The Court of Appeals in the instant

case held that the Defendant's claim in

state court that the prosecutor's com-

ments in closing argument were improper

because they were not based on evidence

before the court and thus violated his

right to a fair trial was the substan-

tial equivalent to a claim that the

Defendant's Sixth Amendment right to con-

front witnesses was violated. The court

held that in effect the substance of the

Defendant's claim was that the prosecu-

tion had obtained an unfair advantage by

effectively introducing into evidence the

hearsay out-of-court statements of the

unidentified informant and then relied on

those statements as evidence of the

Nefendant's guilt. Because this was

exactly what the confrontation clause was

designed to prohibit, the Court of

Appeals held that the Defendant had suf-

ficiently alerted the state appellate

court to a confrontation issue. Hutchins

v. Wainwright, supra at 519. (A30-A31).

The function of the Confrontation

Clause of the Sixth Amendment is to

“advance a practical concern for the

accuracy of the truth-finding process in

a criminal trial by assuring that the

‘trier of fact [has] a satisfactory basis

for evaluating the truth'" of adverse

evidence, either by personal confronta-

tion at trial or some other constitu-

tionally acceptable basis for determining

the reliability of the evidence. Dutton

v. Evans, 400 U.S. 74, 89 (1970) quoting

California v. Greene, 399 U.S. 149

(1969). This Court has repeatedly stated

that although the Confrontation Clause

and the common-law hearsay rule "stem

from the same roots," Dutton v. Evans,

supra at 86, “it is quite a different

thing to suggest that the overlap is

complete. California v. Green, supra at

155.

In analyzing whether hearsay testi-

mony is admissible in light of the Con-

frontation Clause, "the prosecution must

either produce or demonstrate the un-

availability of the declarant whose

statement it wishes to use against the

defendant," and if unavailability is

demonstrated, the statement must also

bear adequate "indicia of reliability.”

Ohio v. Roberts, 448 U.S. 56, 65-66

(1980) (citations omitted). However,

a claim that the prosecutor based his

closing argument on evidence not before

the court. requires no such analysis.

The test for determinine the existence of

prosecutorial misconduct regarding

closing arguments is whether the remarks

were improper and whether they prejudi-

cially affected substantial rights of the

defendant. See Berger v. United States,

295 U.S. 78, 84-89 (1934); United States

v. Vera, 701 F.2d 1349, 1361 ('!th Cir.

1983): "nited States v. Phillips. “*%

F.2d 971, 1030 (Sth Cir. 1981), cert.

denied, _—_-U.S.__—s«,:—-* 1977 S.Ct. 2965

(1982). The actions of the prosecutor

are not judged on whether the declarant

was available to testify and if the

statement was reliable.

This was the analysis urged by the

Defendant to the state appellate court.

The Defendant alleged that the trial

court erred in allowing the prosecutor to

comment on the investigating officers'

testimony concerning encounters with an

unidentified informant, where the only

inference was that this informant had

identified the Defendant as the

perpetrator of the crime, but was afraid

to testify in court. (A168-A169). In

support of his argument, the Defendant

cited state cases that admonished

prosecutors from making comments that

could not be reasonably inferred from the

evidence or which was inflammatory and

calculatd to raise passion or prejudice

in the minds of the jury. (A166-Ai/%).

No reference was made to any hearsay

violations or confrontation clause

claims. In fact the Defendant did not

challenge the admission of the police

officers’ testimony.

The State's argument in reply

revolved around the fact that the prose-

cutor was properly arguing the facts

which were established at trial and whieh

were reasonably inferred from the facts

established. The state specifically

cited to portions in the transcript in

which the two officers testified about

their contact with the young black male.

If the Defendant had in fact argued that

the prosecutor had obtained an unfair ad-

vantage by introducing into evidence the

informant's out-of-court statements as

evidence of the Defendant's guilt, then

the state's argument to the appellate

court would have been absurd and a con-

fession of error. Rather, the State's

argument was a proper reply to the argu-

ment raised: that the prosecutor was not

commenting on evidence not before the

jury because the police officer's tes-

timony concerning the unidentified in

formant had been admitted. The State was

obviously not on notice that the Defen-

dant was raising a violation of the con-

frontation clause of the Sixth Amendment

and the Due Process Clause of the Four-

teenth Amendment. 2!

21A review of the Defendant's brief to

the state appellate court shows that

counsel for the Nefendant was well aware

of how to raise a federal constitutional

issue. His first issue on appeal was

framed in specific constitutional terms.

(A146-A161). Furthermore, the cases re-

lied on by the Court of Appeals to find a

confrontation clause violation were in

existence at the time of the state ap-

pellate brief and could have been cited .

The State submits that a claim that

a prosecutor's comments in closing argu-

ment were improper because they were not

based on evidence before the court, is

not the substantial equivalent of a con-

frontation clause claim. This is es-

pecially so where although the facts are

presented, the issue is framed in terms

of prejudicial prosecutorial comments and

not in terms of whether the testimony of

the police officers was hearsay or

violated his right of confrontation, or

even whether the prosecutor's comments by

themselves were hearsay or violated the

Defendant's right to confrontation, and

there is a total lack of citation to

See, e.g., Favre v. Henderson, 464 F.2d

(5th Cir.) cert.denied 409 U.S. 942

(1972); United States v. Ragano, 476 F.2d

410 (5th Cir. 1973).

federal constitutional provisions and

authorities. Finally, because the

“method of analysis" for the issues are

different, a claim of prosecutorial

comments not based on the evidence cannot

be the substantial equivalent of a

confrontation claim.22 As such, it

cannot be gainsaid, that the Defendant

provided the state appellate court with a

fair opportunity to review his

constitutional claims. The

221t must also be pointed out that any

violation of the confrontation clause,

found by the Court of Appeals, would be

irrelevant for this Court's determina-

tion of the issues in this Petition. As

this Court stated in Duckworth v.

Serrano, 454 U.S. 1, 102 S.Ct. 18 (1981),

there is no clear violation exception to

the exhaustion requirement. The

Defendant, although possibily pre-

cluded from raising this issue on a

motion for post conviction relief in the

state trial court, he is not precluded

from raising it as an issue in a petition

for writ of habeas corpus in the state

appellate court alleging ineffective

assistance of appellate counsel.

Defendant's claims pA have been

rejected on the requirements of

exhaustion and the State would there-

fore urge the Court to grant certiorari

on this issue and reaffirm the princi-

ples of comity as espoused in this

Court's prior decisions and which have

been severely abrogated by the opinion of

the Court of Appeals.

CONCLUSION

The State submits there is an issue

of great public importance herein in the

context of what standards are to be ap-

plied by the federal courts in deter-

mining whether a federal habeas corpus

petitioner has fairly presented to the

state courts the substance of his

federal habeas corpus claim. This Court

has jurisdiction and should take juris-

diction over this matter of compelling

national importance.

Respectfully submitted,

TIM SMITH

Attorney General

PENNY H. BRILL

Assistant Attorney General

Department of Legal Affairs

401 N.W. 2nd Avenue, (820)

Miami, Florida 33128

(305) 377-5441

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

LOUIE L. WAINWRIGHT,

Secretary, Florida Department

of Corrections,

Petitioner,

vs.

MTCHAEL HUTCHINS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT COURT OF APPEALS

APPENDIX

JIM SMITH

Attorney General

PENNY H. BRILL

Assistant Attorney General

Department of l.egal Affairs

401 N.W. 2nd Avenue (820)

Miami, Florida 33128

(305) 377-5441

CONTENTS

PAGE

Judgment and Opinion of the

Eleventh Circuit Court of

BEES sc eseccccccccsacecescee ° A1-A34

Order, Eleventh Circuit

Court of Appeals, Denying

Petition for Rehearing........ A35-A36

Order and Judgment, United

States District Court for

the Southern District of

Florida Granting Writ of

Eg See occccce A37-A38

Order, United States

District Court for the

Southern District of

Florida, Denying Stay........ ° A39-A41

Order, United States

District Court for the

Southern District of

Florida, Dismissal Without

CC. .4C eae ed be eee ee ee ee A42-A47

Report of United States

Dis ccadeqaewecee een ewe A47-A86

Opinion, Florida District

Court of Appeal, Third

RE eee ee A87-A88

Aii

CONTENTS

CONTINUED

Constitutional and

Statutory Provisions..... coee

Order, Eleventh Circuit

Court of Appeals, Granting

Stay.cee. TUTESEEELEPEEE TT

Excerpts from Brief of

Respondent/Appellant,

Eleventh Circuit Court

Of Appeals..ccccccccccsccccccs

Excerpts from Respondent/

Appellant's Motion for

Rehearing, Eleventh Circuit

Court of Appeals...... eocvecce

Excerpts of Brief of

i nage perahar eget

Florida District Court

of Appeal, Third District....

Excerpts of Brief of

Appellee-State of Florida,

Florida District Court of

Appeal, Third District.......

PAGE

A89-A93

A94-A95

A96-A116

A117-A121

A122-A172

A173-A195

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 83-5256

D.C. Docket No. 82-420-CIV-ALH

MICHAEL HUTCHINS, #053170,

Plaintiff-Appellee,

versus

LOUIE L. WAINWRIGHT, ET Al..,

Defendants-Appellants.

Appeal from the United States Dis-

trict Court for the Southern District of

Florida Before HILL, KRAVITCH and

HENDERSON, Circuit Judges.

JUDGMENT

This cause came on to be heard on

the transcript of the record from the

United States District Court for the

Southern District of Florida, and was

argued by counsel;

ON CONSIDERATION WHEREOF, Tt is now

here ordered and adjudged by this Court

that the order of the District Court

appealed from, in this cause be, and the

same is hereby, AFFIRMED.

September 19, 1983

Michael HUTCHINS, #053170,

Plaintiff-Appellee,

Ve.

Touis L. WAINWRIGHT, et al.,

Nefendants-Appellants.

No. 83-5256.

United States Court of Appeals,

Eleventh Circuit.

Sept. 19, 1983.

Penny H. Brill, Asst. Atty. Gen.,

Miami, Fla., for defendants-appellants.

Elliot H. Scherker, Asst. Public

Defender, Miami, Fla., for plaintiff-

appellee.

Appeal from the United States Dis-

trict Court for the Southern District of

Florida.

Before HILL, KRAVITCH and HENDERSON,

Circuit Judges.

JAMES C. HILL, Circuit Judge:

Petitioner, Michael Hutchins, was

found guilty of armed robbery and assault

with the intent to commit second degree

murder. The conviction arose from Mr.

Hutchins’ robbery of a taxicab driver on

July 17, 1975. The pivotal issue at

trial was the identity of the perpetra-

tor. The taxicab driver did identify the

petitioner as the man who had robbed him.

The only other evidence against the pe

tioner is the evidence which formed the

basis of this appeal.

After the robbery occurred, two

investigative police officers were sent

to the scene of the crime. During their

investigation, it appears that a young

black male approached the officers and

informed them of who committed the crime

and where the perpetrator resided. It

was based on this information that the

petitioner's photograph was incorporated

into a spread and shown to the victin,

leading to the defendant's being charged.

However, the informant never appeared or

testified at the trial. The two police

officers who received the tip from the

anonymous informant refused to identify

the young man to either the prosecution

or the petitioner.

At trial, during the opening state-

ment, the prosecutor detailed for the

jury the police investigation leading to

the arrest of the petitioner. In this

statement the prosecutor spoke of how

Detective Purdy had been contacted by a

young man during a canvas of the area

where the crime had occurred. Counsel

for petitioner objected to this state-

ment as referring to inadmissible

hearsay. A bench conference was held

where the court was informed that this

young man had provided the police with

information leading them to the resi-

dence of the petitioner. The prosecu-

tion further states that the two inves

tigative police officers had refused to

reveal the identity of the witness to

either the prosecutor or the peti-

tioner. The prosecutor maintained he

would only inform the jury of "wnat the

detectives did" based on their conver-

sations with the young man, but he would 4

not adduce those conversations for the

jury or the fact that young man had

directed the officers to the petitioner's

residence, The court ruled that the pro-

secutor would be permitted "to inquire of

the officer simply as a result of his in-

vestigation what did he do." This ques-

tioning could refer to the presence of a

bystander at the scene of the crime who

left some kind of notation in the offi-

cers' car which prompted the police to

further investigate the area.

During direct examination of the

police officers, testimony was eli-

cited, over objection, that the offi-

cers had met with a young male in the

vicinity of the robbery and that they had

driven with the young man to the area of

1840 N.W. 60th Street (the petitioner's

address). NMDuring closing argument, the

prosecutor referred to the meeting be-

tween the police and the unidentified

young man in the following manner:

Mr. Goldstein: He testi-

fied he went to 1840 North-

west 60th Street, and as you

remember later on, that is

where the Defendant Lives.

He testified that he got

out of the car, and he con-

ducted an investigation on

the scene there, that he went

back to his office, and he

made out this photo display,

and put the photograph of

Michael Hutchins in the photo

display, and detective went

to the hospital ....

* + * * * *

Then afterwards the detec-

tive got out a warrant; went

to the State Attorney's Of-

fice; went to a judge; got a

warrant for Michael Hutchins'

arrest: went back to that

address, and where was the

address? 1840 Northwest 60th

SEESOS wicc

The prosecutor went on to explain

the absence of the unidentified witness

by saying "[a] crime of this nature

creates fear" and that "poeple who have

the fear do not want to get involved * *

* [t]hey do not want to physically face

the accused." The prosecutor then urged

the jury "not only to rely on what you

have heard here,” which he described as

"the tip of the iceberg,” but "to con-

sider all the circumstances involved in

this crime.” Petitioner asserts that as

a result of the introduction into evi-

dence of the substance of statements

A10

attributed to an unidentified and un-

disclosed informant, and the reliance

upon those statements as evidence of the

guilt of the defendant, violated peti-

tioner's right to confrontation under the

sixth amendment to the United States Con-

stitution.

In this case, it is clear from the

record that an anonymous informant con-

tacted the investigating officers and in-

formed them that he knew who had com-

mitted the crimes. He told the officers

the name and address of the assailant.

However, for whatever reasons, this in

formant refused to testify at the defen-

dant's trial and the investigating offi-

cers refused to name the informant to

both the prosecution and the defense.

The prosecutor's knowledge of this

All

information placed him in a diffi-

cult position. He zealously attempted

throughout the trial to place into evi-

dence that there existed an eyewitness

informant. The trial court attempted to

allow portions of this evidence in under

the theory that the officers were enti-

tled to testify as to their investigative

efforts. However, in closing argument

the prosecutor could no longer withstand

the temptation to spell out for the jury

the existence of this anonymous infor-

mant. In doing so, the prosecutor, in

essence, informed the jury that there

existed an eyewitness to this crime who

accompanied the police to the residence

of the defendant, but who refused to tes-

tify out of fear of retribution. This

situation was aptly described by the

Al2

prosecutor as "a problem for everybody."

Indeed, this court agrees that it is a

problem of monumental concern when there

is a witness who could assist the jury in

its truthfinding process, but is afraid

to testify. Reference to such a witness'

statements, however, is inadmissible

under the constitution. Here, the prose-

cution gave in to the temptation to pro-

vide for the jury this inadmissible evi-

dence. This violated the defendant's

right to confront the anonymous, non-tes-

tifying witness. The prosecutor violated

the defendant's rights when he explained

to the jury that this anonymous informant

was afraid to testify, but that it was

clear he was an eyewitness to the crime

who had identified to the officers, the

defendant as the perpetrator.

Al3

The sixth amendment right of an

accused to confront the witnesses against

him or her is a fundamental right.

Mutton v. Evans, 499 U.S. 74, %1 §.Ct.

210, 27 L.Ed.2d 213 (1970). Although we

do not doubt the existence of this infor-

mant, he was never present, nor did he

testify at the trial. The purpose of a

defendant's right to confront a witness

who testifies against him or her is not

only to allow the defendant a chance at

cross-examination, but to allow the jury

to observe, and judge the credibility of

the witnesses. The Supreme Court sun-

marized the importance of the confronta-

tion clause when it stated:

The mission of the Confronta

tion Clause is to advance

practical concern for the ac-

curacy of the truth-deter

mining process in criminal

trials by assuring that ‘the

Al4

trier of fact [has] a satis

factory basis for evaluating

the truth of the prior state-

ment.’

Dutton, 400 U.S. at 89, 91 S.Ct. at 220,

quoting California v. Green, 399 U.S.

149, 90 S.Ct. 1930, 26 L.Ed.?7d 489

(1969).

In analyzing a confrontation clause

inquiry, the court must initially deter

mine whether the out-of-court statements

are within the hearsay rule. The trial

court concluded and we agree that the

statements elicited by the prosecutor of

the investigating officers were hearsay.

Although the officers’ testimony may not

have quoted the exact words of the infor-

mant, the nature and substance of the

statements suggesting there was an eye-

witness, and what he knew was readily

inferred. See Favre v. Henderson, 464

Al5

F.2d 259, 362 (Sth Cir.), cert. denied,

409 U.S. 942, 93 S.Ct. 235, 34 L.Ed. 7d

193 (1972). Indeed, the violation became

clear when the prosecutor in final argu-

ment, urged the jury to draw the infer-

ence that the witness knew who committed

the crime but was afraid to come to

court.

A finding that the statements were

hearsay does not necessarily require a

finding that the confrontation clause has

been violated. See e.g., Dutton v.

Evans, 400 U.S. 74, 91 S.Ct. 210, 27

L.Ed.?d 213 (197%). To establish that

the admission of the hearsay statements

did not violate the confrontation clause,

the prosecution must show that the out-

of-court declarant is unavailable for

trial and the statements bear a

Al6

sufficient indicia of reliability to

provide the jury with an adequate basis

for evaluating their truth. Ohio v.

Roberts, 448 U.S. 56, 62-66, 100 S.Ct.

2531, 2537-39, 65 L.Ed.2d 597 (1980). In

this case neither of the above require-

ments were established. The prosecu-

tion's only answer to the nonproduction

of the informant was that the investi-

gating officers refused to identify the

witness, Additionally, the prosecution

provided no basis no evaluating the cre-

dibility of the unnamed informant. Ac-

cordingly, having not met either require-

ment under Roberts, the admission of

these statements violated the confronta-

tion clause. See Mancusi v. Stubbs, 408

U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293

(*972); Hoover v. Beto, 467 F.2d 516 (‘Sth

Al7

Cir.), cert. denied, 409 U.S. 1086, 93

S.Ct. 703, 34 L.Ed.?d 67? (1977).

It is also a fundamental principle

of trial practice that a prosecutor may

not seek to obtain a conviction by pre-

senting to the jury any evidence outside

of the record. United States v. Vera,

701 F.7d 1349 (llth Cir.198”). The pro-

secutor clearly went outside the record

of this case when he explained to the

jury that there was an eyewitness infor

mant who told the police that Hutchins

was the perpetrator of the crime. The

trial court concluded, and we agree, that

the prosecutor's reliance on the hearsay

testimony in closing argument was such

that a reasonable juror could have con-

cluded only that the informant identified

Hutchins as the perpetrator of the

Als

robber. The use of this testimony in

closing argument and the easily drawn

inferences therefrom, constituted hearsay

and violated the confrontation clause,

thereby denying Hutchins a fair trial.

See Ohio v. Roberts, 448 U.S. 56, 100

S.Ct. 2531, 65 L.Ed.2d 597 (*98N)- see

also Favre v. Henderson, 464 F.2d 359,

362 (Sth Cir.), cert. denied, 409 U.S.

942, 93 S.Ct. 235, 34 L.Ed 9d 193 (1972).

The prosecution submits that even if

the admission of the challenged state-

ments and his reliance upor them in

closing argument was error, it was harm-

less because the petitioner was identi-

fied at trial by the victim of the rob-

bery. The standards for determining

whether a constitutional violation is

harmless are well established. tf there

Al9

is "a reasonable possibility that the

evidence complained of might have con-

tributed to the conviction,” the error is

not harmless. Fahy v. Connecticut, 375

U.S. 85, 86-87, 84 S.Ct. 229, 230, ll

L.Ed.?d 17* (1963); see also Milton Wain-

wright, 407 U.S. 371, 372-73, 92 S.Ct.

2174, 2175-76, 33 L.Ed.?d * (1972); Zilka

v. Estelle, 529 F.2d 388, 390 (5th

Cir.1976). Once a constitutional error

is established, there is a presumption of

prejudice and the burden is on the bene-

ficiary of the error to prove beyond a

reasonable doubt that the error did not

contribute to the verdict. Zilka v.

Estelle, 529 F.2d 388, 390 (5th Cir.

1976)- see Chapman v. California, 386

U.S. 18, 87 S.Ct. 824, 17 L.Ed.?d 705

(1967).

A20

In this proceeding, the prosecution

has not carried its burden of persuading

this court that the error was harmless.

Although there was one in court positive

identification of the petitioner, this

identification was vigorously challenged

and somewhat equivocal. There is a total

absence of any corroborative testimony of

the identity of Hutchins.

However, we are also confronted with

a procedural question of whether Hutchins

sufficiently exhausted state remedies be-

fore filing this habeas action. After

Hutchins was found guilty at trial, he

filed a timely appeal to the Florida ap-

pellate court where his conviction was

affirmed. Hutchins v. State, 349 So.2d

1237 (Fla.App.1977). The main issue pre-

sented on appeal to the Florida appellate

A21

court, as stated in petitioner's brief,

was as follows:

Whether the trial court erred

in allowing prosecutorial

comments regarding the inves-

tigating officers’ encounters

with an unidentified third

person to pervade the entire

trial, where the only purpose

of this argument was to lead

the jury to draw the imper-

missible inference that this

third person had identified

the defendant as the perpe

trator of the charged crime,

but was afraid to testify in

court.

Petitioner subsequently filed a pro

se motion for post conviction relief pur-

suant to Rule 3.850 of the Florida Rules

of Criminal Prosedure. This motion was

denied and no appeal was taken. Peti-

, tioner then filed a pro se petition for

writ of habeas corpus in the federal dis-

trict court. Four issues were raised in

this petition: (1) denial of a speedy

A22

trial; (2) exclusion of defense evi-

dence: (%) suppression by the prose-

cution of favorable evidence; and (4) the

unconstitutional admission of hearsay

testimony. The trial court dismissed the

petition without prejudice concluding

that only two of the four grounds raised

had been exhausted. One of the two

grounds held to have been exhausted was

the claim of unconstitutional admission

of hearsay testimony. Petitioner chose

not to file any further petitions in ;

state court. Rather, petitioner filed a

second petition in the federal court al-

leging three grounds for relief: (*) the

trial court's denial of defense counsel's

request to produce a witness; (7) the un-

constitutional admission of hearsay tes-

timony; (3) the unconstitutional failure

A23

of the prosecution to disclose evidence

favorable to the defense.

Tn response to this petition, re-

spondent filed a motion to dismiss, con-

ceding that the first and second grounds

presented by petitioner had been ex-

hausted, but that the third ground had

not been presented to the state court.

Respondent further requested that peti«

tioner state his intentions regarding the

speedy trial claim which was presented in

the first petition for habeas, but was

not mentioned in the second petition.

The petitioner filed an election of

remedies forever waiving his speedy trial

claims. Petitioner then filed a memoran-

dum of law in support of his petition,

proceeding only on the two claims which

A24

had been exhausted; (1) the unconstitu-

tional admission of hearsay evidence; and

(2) the trial court's denial of the pro-

duction of witness. These two claims, as

presented in petitioner's memorandum to

the court were stated as follows:

8A. The exclusion by the

trial court of relevant and

material exculpatory evidence

offered by petitioner, in

violation of the Compulsory

Process Clause of the Sixth

Amendment and the Due Process

Clause of the Fourteenth

Amendment to the Constitution

of the United States.

B. The admission by the trial

court of incriminating out-

of-court statements an un-

identified and undisclosed

informant, in violation of

the Confrontation Clause of

the Sixth Amendment and the

Due Process Clause of the

Fourteenth Amendment to the

Constitution of the United

States.

In response to this memorandum, the

respondent realized that the concession

A25

that the claim of unconstitutional admis-

sion of hearsay had been exhausted was

erroneous. Respondent contended that al-

though it was clear from this final peti-

tion that Hutchins was raising a confron-

tation clause claim, he had never pre-

viously raised this claim in the state

courts. Rather, petitioner had presented

only a hearsay claim. The words confron-

tation clause had not been used by peti-

tioner in any of his prior petitions in

state or federal court and, therefore,

according to the respondent this issue

had either been waived or must be as-

serted in the state court prior to being

considered by the federal court. See

Engle v. Isaac, 456 U.S. 107, 102 S.Ct.

1558, 71 1..Ed.2d 783 (1987).

The magistrate concluded that the

confrontation clause claim was properly

A26

before him and that the respondent “ha[d]

failed to present an acceptable or justi-

fiable excuse for its failure to pre-

viously assert these procedural claims."

The magistrate further concluded that the

admission of the hearsay testimony and

the prosecutor's comments in closing ar-

gument referring to the testimony about

the anonymous informant violated peti-

tioner's rights under the confrontation

clause of the sixth amendment. Accord-

ingly, the magistrate recommended that

the writ of habeas corpus be granted.

The district court adopted this recommen-

dation.

Respondent argues that the confron

tation clause claim raised by Hutchins in

his present petition was never presented

to the Florida Courts and, therefore, the

A27

issue had been either waived or must yet

be exhausted under Engle v. Isaac, 456

U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 78%

(1982) and Wainwright v. Sykes, 433 U.S.

72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

Respondent contends that the petitioner,

on direct appeal, raised the issues of

the admission of hearsay evidence and

prosecutorial misconduct, not a sixth

amendment confrontation clause claim.

The Supreme Court has mandated that

when there has been a procedural default

which bars state litigation of a consti-

tutional claim, a state prisoner may not

subsequently obtain habeas relief absent

a showing of cause and actual prejudice.

Pa)

Engle v. Isaac, 456 U.S. 107, 102 S.Ct.

1558, 1572, 71 L.Ed.?d 7%” (1982); see

Wainwright v. Sykes, 433 U.S. 72, 97

A28

S.Ct. 2497, 53 L.Ed.2d 594 (1977). The

failure to abide by a state procedural

rule in preserving an error for appeal or

in asserting that error on appeal bars

federal habeas review of the claims not

presented to the state courts. Ford v.

Strickland, 696 F.2d 804, 816-17 (llth

Cir.198%); see also Engle v. 'saac, 456

U.S. 107, 102 S.Ct. 19558, 71 L.Ed.2d 7°*

(1982). The issue presented to us is

whether there existed a procedural de-

fault in this instance.

The trial record is replete with ob-

jections by defense counsel to the testi-

mony regarding the out-of-court state-

ments of the unidentified informant. Al-

though the phrasing of the issue on di-

rect appeal did not use the words "con-

frontation clause,'

the appeal clearly

A29

presented the problem of allowing and

urging the jury to infer that an unnamed

non-testifying witness had identified the

petitioner. The fifth circuit has held

that objectior on hearsay grounds is suf-

ficient to present a state court with a

subsequently raised federal constitution

confrontation clause claim. Thomas v.

Estelle, 582 F.2d 939, 941 (5th

Cir.1978). The applicable law requires

that a habeas corpus petitioner present

"the substance of a federal habeas corpus

claim" to the state courts. Pickard v.

Connor, 404 U.S. 270, 278, 92 S.Ct. 509,

513, 30 L.Ed.2d 438 (1971). However, it

is not required that the petitioner

present book and verse on the federal

constitution. Id. We are mindful of

respondent's citation to Anderson v.

Harless, U.S.

A30

102 S.Ct. 276, 74 L.Ed.2d 3 (1982), for

the proposition that the petitioner must

couch his claim so as to allow a state

court to rule on any applicable consti-

tutional grounds. The Court in Harles,

however, still focused on the premise

that it is the substance of the claim

that the court looks to in analyzing

whether a federal claim has been voiced.

We concluded that the issue, as

presented on direct appeal, albeit

obliquely stated, did sufficiently alert

the state court to a confrontation issue.

The substance of petitioner's claim was

that the prosecution obtained an unfair

advantage by effectively introducing into

evidence the out-of-court statements of

the unidentified informant. The prosecu-

tion then relied upon those statements as

A31

evidence of the petitioner's guilt. This

is exactly what the confrontation clause

is designed to prohibit. See California

v. Green, 399 U.S. 149, 157-59, 90 S.Ct.

1930, 1934-35, 26 L.Ed.2d 489 (1970);

Barber v. Page, 390 U.S. 719, 721-22, 88

S.Ct. 1318, 1320-21, 20 L.Ed.2d 255

(1968):- limited States v. Ragano, 476 F.2d

“1. 414-15 (Sth Cir.1973).

The Florida appellate court affirmed

petitioner's conviction without any writ-

ten opinion. It is, therefore, presumed

that the court addressed petitioner's

claim and rejected it. Smith v. Digmon,

434 U.S. 332, 333-34, 98 S.Ct. 597,

598-99, 54 L.Ed."d 58 (1978); Carr v.

State of Alabama, 586 F.2d 462, 464-65

‘Sth Cir 1978), We find that the con-

frontation issue was presented to the

A32

state appellate court and the issue has

been sufficiently exhausted.

Although we have concluded that pe-

tioner's federal habeas claim is properly

before this court, we do not condone the

manner in which it was presented. The

mere raising of a hearsay claim is not

the automatice equivalent of raising a

confrontation clause claim, Although the

two principles may have stemmed from the

same roots, they have never been equated.

See Dutton v. Evans, 400 U.S. 74, 86, 91

S.Ct. 210, 218, 27 L.Ed.2d 713 (1970);

United States v. Thevis, 665 F.2d 616,

632 (Sth Cir. Unit B. 1982). Exhaustion

of state remedies is not simply a proce-

dural mechanism for determining a state

prisoner's ability to enter the federal

court system. Rather, exhaustion was

A33

designed to ensure that state courts have

the initial opportunity to determine a

defendant's rights under both state and

federal law. See Engle v. Isaac, 456

U.S. 107, 102 §.Ct. 1558, 71 L.Ed.2d °°

(1982). The state possesses the primar~

authority to define and enforce criminal

laws, as well as the responsibility of

vindicating constitutional rights. Fed

eral intrusion into the state court sys

tem frustrates the State's power to pun-

ish offenders in accordance with the law.

Id. 102 S.Ct. at 1571; see Schneckloth

v. Bustamonte, 412 U.S. 218, 263-65, 93

S.Ct. 2041, 2066-67, 36 L.Ed.2d 854

(1973) (Powell, J., concurring).

Accordingly, when a criminal defendant

perceives a constitutional error during

the course of the trial, it is defense

A34

counsel's responsibility to raise the

error both at trial and on appeal in

clear and forthright terms thereby

alerting the state to the perceived

error.

Tt is this court's conclusion that

petitioner did sufficiently alert the

state court to his confrontation clause

claim, despite the inartful wording of

his brief. Because we conclude that this

case is properly before us and because

there was a clear violation of peti

tioner's rights to confrontation, we

AFFTRM the grant of the writ by the trial

court.

A35

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 83-5256

MICHAEL HUTCHINS,

Plaintiff-Appellee,

versus

LOUIE L. WAINWRIGHT,

Defendant-Appellant.

Appeal from the United States District

Court for the Southern Yistrict of

Florida

A36

ON PETITION FOR REHEARING

( NOV 2 1983 )

Before HILL, KRAVITCH and HENDERSON,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for

rehearing filed in the above entitled and

numbered cause be and the same is hereby

denied.

ENTERED FOR THE COURT:

JAMES C. HTLL :

UNITED STATES CIRCUIT JUDGE

A37

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 82-0420-CIV-JE

MICHAEL HUTCHINS,

Petitioner, =:

vs. : ORDER AND

INDGMENT

LOUIE L. WAINWRIGHT, as

as Secretary, Depart-

ment of Corrections,

State of Florida,

Respondent.

For the reasons stated in the Report

of the Magistrate, and upon review of the

file, it is now ORDERED:

That the Writ of Habeas Corpus is

granted, and petitioner is discharged

from custody unless the State of Florida

conducts a new trial within sixty (4%)

days from the date of this Order.

A38

In Miami, Florida, this 1 day of

April 1983.

ALCEE L. HASTINGS

UNITED STATES DISTRICT

JUDGE

Copies to:

Elliot H. Scherker

Assistant Public Defender

1351 NW 12th Street

Miami, FL %33125

Penny H. Hershoff

Assistant Attorney General

491 NW Second Avenue

Miami, FL 33128

A39

UNITED STATES DISTR'CT CORT

FOR THE

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 82-420-Civ-ALH

MICHAEL HUTCHINS,

Petitioner,

-ve- ORNER

DENYING STAY

LOULE L. WAINWRIGHT,

as Secretary, Depart-

ment of Corrections,

State of Florida,

Respondent.

/ .

“HIS CAUSE comes before the Court

upon Respondent's Motion for a stay of

further proceedings in this cause pending

resolution of the appeal which has been

filed with the United States Eleventh

Circuit Court of Appeals, or alternative-

ly for an enlargement of the time within

A40

which the State of Florida must retry the

Petitioner.

Having review the record in this

case, having considered Respondent's Mo-

tion, and being otherwise duly advised in

the premises, it is hereby.

ORDERED AND ADJUDGED that Respon

dent's Motion for Stay of Further Pro

ceedings Pending Appeal is DENIED. The

Court will, however, allow the State of

Florida ninety (90) days from the date of

this Order within which to retry the Pe-

titioner.

DONE AND ORDERE™ in Chambers this

18th day of April, 1983.

KLCEE-L> HASTINGS —

UNITED STATES DISTRICT

JUDGE

A41

Copies furnished counsel:

Elliot Scherker

Penny Hershoff Brill

A42

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 78-3264-CIV-NCR

MICHAEL HUTCHINS,

Petitioner,

-vs- : ORDER OF

DISMISSAL

M. K. SAWYER,

Respondent.

Michael Hutchins has filed a pro se

Petition for Writ of Habeas Corpus pur-

suant to 28 U.S.C. Section 2254,attacking

a conviction for robbery and of commit-

ting assault with the intent to commit

second degree murder entered on April 73,

1976 after a jury trial in Case No.

75-7951 in the Circuit Court of the Ele-

venth Judicial Circuit, at Dade County.

Hutchins is currently serving a twenty

A43

(20) year term on the robbery convic-

tion and a ten (10) year term on the

assault conviction, the latter sentence

to run consecutively with the sentence

imposed for robbery. Hutchins is in-

carcerated at the Brevard Correctional

Institutional, at Sharpes, Florida.

For its consideration with this pe-

tition, the Court has the Respondent's

response to an order to show cause, the

briefs filed on appeal, and a transcript

of the jury trial. |

Hutchins presents four grounds for

relief in this petition, as follows:

ae The denial of the right to a

speedy trial.

Ze The conviction was obtained by

the unconstitutional failure of

the court to disclose evidence

favorable to the defendant.

36 The conviction was obtained by

the unconstitutional failure

A4S4

of the prosecution to disclose

evidence favorable to the

defendant.

4. The conviction was obtained by

the court's unconstitutional

act of letting hearsay evidence

in, which was only facorable to

the prosecution.

Hutchins raised the substantial

equivalent of numbered issues 2 and 4 on

direct Appeal to the Third District Court

of Appeal of Florida which confirmed his

conviction. Hutchins v. States, 349

So.2d 1737 (Fla. 3d DCA, 1977). A subse-

quent state motion to vacate raised issue

1, the denial of the right to a speedy

trial. But Hutchins failed to appeal the

denial of the motion to vacate to any

state appellate court.

It is evident that although Hutchins

has exhausted state remedies as to two of

the four issues raised in the petition,

A45

he has not exhausted his state remedies

as to issue number 1, the denial of the

right to a speedy trial, nor issue number

3, the failure of the prosecution to dis-

close evidence favorable to the defen-

dant.

To avoid piecemeal litigation, the

Fifth Circuit Court of Appeal has consis-

tently required that state remedies be

exhausted as to all issues raised in a

federal habeas corpus petition.

Burroughs v. Wainwright, 454 F.2d 1165

(Sth Cir. 1973)- Meachem v. Beto, 451

F.2d 187 (Sth Cir. 1971); Garrett v.

State of Texas, 435 F.2d 709 (‘Sth Cir.

107%),

Tn light of the above, this Petition

for Habeas Corpus is DISMISSED without

prejudice so that Petitioner may exhaust

A46

his state remedies: and, it is hereby so,

DONE AND ORDERE” at Miami, Florida,

this 24th day of Sept, 1979.

cc:

NORMAN C. ROFTTGER

UNITED STATES DISTRICT

JUDGE

Mr. Michael Hutchins, #053170

P. O. Box 340

Brevard Correctional Institution

Sharpes, Florida 32959

Ms. Maragrita Esquiroz

Assistant Attorney General

401 N. W. 2nd Avenue,

Suite 820

Miami, Florida 33128

A47

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO: 82-0420-Civ-JE

MICHAEL HUTCHINS,

Petitioner,

vs. : REPORT OF

UNITED STATES

LOUIE L. WAINWRIGHT, : MACISTRATE

as Secretary, Depart-

ment of Corrections,

State of Florida,

Respondent.

In March, 1982, Michael Hutchins

filed a pro se Petition for Writ of

Habeas Corpus, 28 U.S.C. 2254!.

Petitioner alleges that his custody,

under a judgment by the Circuit Court of

the Eleventh ‘'udicial Circuit of Florida,

Ifhereafter the cause was re-assigned

to me, and Mr. Elliot Scherker entered

his appearance as petitioner's counsel.

—— Pree a

A48

on April 15, 1976, for the offenses of

armed robbery and assault with intent to

commit second-degree murder, is unlawful

under the Constitution of the United

States. Currently in the custody of

resspondent, he is serving consecutive

sentences of 20 and 10 years' imprison-

ment.

1 make this Report pursuant to 28

U.S.C. §636(b)(1)(B), and Rules 8 and 10

of the Rules Governing Section 2254 Cases

in United States District Courts.

Petitioner has raised two issues:

*) that the exclusion by the state trial

court of evidence offered by petitioner

at trial violated the Compulsory Process

Clause of the Sixth Amendment and the Due

Process Clause of the Fourteenth Amend

ment; and 2) that the admission into

A49

evidence of the substance of incrimina-

tory statements attributed to an unnamed

informant, and the reliance by the pro-

section upon those statements as evi-

dence of guilt, violated the Confronta-

tion Clause of the Sixth Amendment and

the Due Process Clause of the Fourteenth

Amendment. In my view the first ground

does not state a claim upon which peti-

tioner should receive habeas corpus re-

lief2 . However, I find that peti-

tioner is entitled to relief on the

second ground: the introduction into

evidence of, and argument upon, out-of-

court statements attributed to an

2The Court thereby makes no finding

that the evidence was properly excluded.

On re-trial, the same proffer may well

receive admission. ' simply decline to

find that its exclusion was error of

Federal Constitutional magnitude.

A50

unidentified informant.

PROCEDURAL ISSIIES

Petitioner was found guilty by a

jury of armed robbery and assault with

intent to commit second-degree murder on

April 15, 1976. The state trial court

adjudicated guilt on that date, and im-

posed sentence on April 23, 1976. A

timely appeal was taken to the Florida

Third District Court of Appeal which

issued it decision, affirming the judg-

ment and sentence without a written

opinion, on August 9, 1977. Hutchins v.

State, 349 So.2d 1237.

On December 12, 1977, Petitioner

filed a pro se motion for post-conviction

relief, Rule 3.850 of the Florida Rules

of Criminal Procedure. The motion was

denied on January 7, 1978. No appeal was

A5l

taken. Petitioner thereafter filed a pro

se petition for writ of habeas corpus in

this Court. It was denied without pre-

judice on September 24, 1979. The pre-

sent petition was filed on March 2, 1982.

Respondent's memorandum of law filed

on November 22, 1982, asserted that peti-

tioner's confrontation claim is not pro-

perly before this Court. Specifically,

respondent claims that this issue was not

properly presented to the state appellate

court on petitioner's direct appeal.

From this premise, respondent argues that

petitioner is either barred from present

ing this issue on federal habeas corpus

due to a state procedural default, or has

not fully exhausted his state remedies.

The parties agree that petitioner cannot

re-assert his confrontation claim in the

A52

state courts, becasue the issue is, under

Florida law, properly cognizable on

direct appeal and therefore not properly

raised in state post-conviction proceed-

ings. See Adams v. State, 380 So.2d 423

(Fla. 19°°). Accordingly, the claim must

be deemed "exhausted", whether or not it

was actually presented to the state

courts in the first instance. Engle v.

Isaac, «U.S. ___,, 102 S.Ct. 1558,

1570 n.28 (°982).

The threshhold question, then, is

whether petitioner should, as respondent

claims, be forever barred from invoking

the habeas corpus jurisdiction of this

Court. The Court finds that the confron-

tation claim is properly presented here

for two reasons: ‘') respondent is

estopped from seeking a dismissal on this

ground; 2) the claim was sufficently pre-

sented to the state courts to satisfy the

requirements of Isaac, and Wainwright v.

Sykes, 433 U.S. 72 (1977).

In his first petition in this Court,

Case No. 78-3274-Civ-NCR, petitioner

raised four claims: 1) the denial of a

speedy trial; 2) the failure of the state

trial court to disclose favorable evi-

dence; and 4) the admission of hearsay

evidence at his trial.

The order of dismissal entered by

Judge Roettger on September 24, 1979,

states in pertinent part:

Hutchins raised the sub-

stantial equivalent of num-

bered issues 2 and 4 on

direct appeal to the Third

District Court of Appeal of

Florida which [affirmed] his

conviction. A subsequent

state motion to vacate raised

issue 1, the denial of the

right to a speedy trial. But

A54

Hutchins failed to appeal the

denial of the motion to

vacate to any state appellate

court.

Tt is evident that al-

though Hutchins has exhausted

state remedies as to two of

the four issues raised in the

petition, he has not

exhausted his state remedies

as to issue number 1, the

denial of the right to a

speedy trial, nor issue nun-

ber 3, the failure of the

prosecution to disclose evi-

dence favorable to the defen-

dant.

The Court accordingly dismissed the peti-

tion without prejudice.

Petitioner did not file any further

motions or petitions in the state courts.

The present petition, filed on March 2,

1982, raised three claims: 1) the exclu-

sion of proferrred defense testimony by

the state trial court; 2) unconstitu-

tional admission of hearsay testimony;

and 3) tre failure of the prosecution to

A55

disclose favorable evidence. Respon

dent's motion to dismiss the petition on

July 10, 1982, conceded that petitioner

had raised "the [substantial] equivalent

of two of the [three] grounds which he

presently raises in this federal habeas

corpus petition, that is, ground (1), the

exclusion of a [defense] witness on the

basis that his testimony was irrelevant,

and ground (2), the admission of hearsay

evidence at his trial." Respondent

sought a dismissal without prejudice on

the ground that petitioner had not pre-

sented the third claim (failure to dis-

close favorable evidence) to the state

courts, and further sought a declaration

from petitioner regarding his intentions

as to his speedy trial claim, raised in

his first petition but not by the second.

A56

The Court thereafter permitted state

appellate counsel for petitioner to enter

an appearance on his behalf, and directed

counsel to file a statement of the

grounds upon which petitioner intended to

proceed in this Court. Counsel there-

after filed a notice of election of reme-

dies, advising the Court that petitioner

would proceed upon the two grounds which

had been presented to the state courts,

and would abandon the remaining claims

alleged in the two petitions.

Tn a responsive memorandum of law

filed on November 22, 1982, pursuant to

the Court's Order of October 25, 1982,

respondent first raised the two proce-

dural claims noted above. The Court

finds that respondent has failed to pre-

sent an acceptable or justifiable excuse

A57

for its failure to previously assert

these procedural claims.

Both the exhaustion doctrine em-

bodied in 28 U.S.C. §2254(d) and the

waiver rule of Isaac and Sykes are policy

rules, grounded upon well recognized con-

sideration of federal-state comity. See

Engle v. Isaac, supra, at 1571-72;

Galteiri v. Wainwright, 582 F.2d 348, %54

(Sth Cir. *“~ ). It is accordingly well

established that a custodian in a habeas

corpus proceding may be estopped from

asserting, or be held to have waived,

such procedural objections to the con-

sideration of the merits of a prisoner's

claims. See Messelt v. Alabama, 595 F.2d

2747, 250 (Sth Cir. 1979); Houston v.

Estelle, 569 F.2d 372, 376 (5th Cir.

1978); Collins v. Estelle, 474 F,2d 988,

99 (Sth Cir. 1973).

A58

The Court finds that the Order of

dismissal entered by Judge Roettger on

September 24, 1979, constitutes a final

judicial determination that the substan-

tial equivalent of the present confronta-

tion claim was presented to the state

courts and that state remedies were pro-

perly exhausted as to this claim. The

Court therefore concludes that respondent

is estopped by that ruling from reliti-

gating this issue in this proceeding un-

der the doctrine of collateral estoppel,

as applied in both civil and criminal

cases. See Ashe v. Swenson, 397 U.S.

436, 443-44 (1970)- Aerojet-General Cor-

poration v. Askew, 511 F.?d 710, 715 (5th

Cir. 1975), cert.denied, 423 U.S. 837

(1975): McDonald v. Wainwright, 493 F.°d

204. 207 (Sth Cir. 1974) Rankin v. State

A59

of Florida, 418 F.2d 482, 486 (5th Cir.

1969), cert.denied, 397 U.S. 1039 (197%).

The Court further finds that the

failure of respondent to raise these de-

fenses prior to the belated assertion in

this proceeding, after petitioner had

justifiably and detrimentally relied upon

the concession of respondent in his

initial motion to dismiss that the sub-

stantial equivalent of the confrontation

claim had been presented to the state

courts, both equitably estops respondent

from raising his procedural defense, and

constitutes a waiver. See LaRoche v.

Wainwright, 599 F.2d 722, 724 (Sth Cir.

1979). The Court therefore concludes

that respondent is barred from seeking a

dismissal of the present petition.

The Court further finds that the

A60

substantial equivalent of the confron-

tation claim was presented to the state

courts, both at trial and on appeal. The

trial record is replete with objections

by defense counsel to testimony regarding

the out-of-court statements of the un

identified informant. The brief filed

for petitioner in the state appellate

court recites these objections. The

issue presented on direct appeal to the

state appellate court was:

Whether the trial court erred

in allowing prosecutorial

comments regarding the inves-

tigating officers’ encounters

with an unidentified third

person to pervade the entire

trial, where the only purpose

of this argument was to lead

the jury to draw the imper-

missible inference that this

third person had identified

the defendant as the perpe-

trator of the charged crime,

but was afraid to testify in

court.

The Fifth Circuit has held that

A61

obections on hearsay grounds are suf-

ficient to present to the state courts a

subsequently-raised federal constitu-

tional confrontation claim. Thomas v.

Estelle, 582 F.2d 939, 941 (5th Cir.

1978). Applicable law requires a habeas

corpus petitioner to present “the sub-

stance of a federal habeas corpus claim"

to the state courts but does not require

the citation of "book and verse on the

federal constitution.'" Picard v.

Connor, 404 U.S. 270, 278 (1971) (cita-

tions omitted). The recent decision in

Anderson v. Harles, U.S. _, 102 S.Ct.

276 (1982), upon which respondent relies,

reaffirms the principle that the sub-

stance of a federal habeas corpus claim

must first be presented to state courts.

I find that the substance of the

A62

present claim was presented to the state

courts by petitioner, both at trial and

on appeal. The essence of the claim is

that the prosecution obtained an unfair

advantage by effectively introducing into

evidence the out-of-court statements of

the unidentified informant as ostensible

non-hearsay, and then relying upon those

statements as evidence of Petitioner's

guilt. This is precisely what the Con-

frontation Clause is designed to pro-

hibit. See California v. Green, 399 U.S.

149, 157-59 (1970)- Barber v. Page, 390

U.S. 719, 721-27 (1968); Douglas v.

Alabama, 380 U.S. 415, 418-19 (1965);

United States v. Ragano, 476 F.2d 410,

414-15 (5th Cir. 1973)- Favre v. Hender-

son, 464 F.2d 359, 361-64 (5th Cir.

1972): cert.denied, 409 U.S. 942 (1972).

A63

The state appellate court affirmed

petitioner's conviction without written

opinion. It is therefore conclusively

presumed that the court addressed his

claim and rejected it. Smith v. Digmon,

434 U.S. 332. 333-24 (1978); Carr v.

State of Alabama, 586 F.2d 462, 464-65

(5th Cir. *978); Leslie v. Wainwright,

511F.Su pp. 753, 755 (M.D. Fla. 1981). I

accordingly find that the state appellate

court approved the prosecutor's reliance

upon out-of-court statements as substan-

tive evidence of guilt, rendering the

present claim properly brought in federal

habeas corpus.

Moreover, * find that the state

court's approval of the prosecutorial

tactics employed in this case obviates

any need for petitioner to re-exhaust his

A64

confrontation claim and eliminates any

procedural bars, even were his earlier

failure to cite applicable constitu-

tional provisions given any weight.

While Engle v. Isaac, supra, holds

that perceived futility of presenting a

claim to the state courts will not excuse

a failure to do so, 102 S.Ct. at 1572-73,

the subsequent decision of the Fifth Cir-

cuit in Henry v. Wainwright, 686 F.2d 311

(5th Cir. 1982), rendered on a remand for

reconsideration in light of Isaac in

Wainwright v. Henry, — U.S. _, 102

S.Ct. 2922 (1982), holds that the failure

of counsel to repeatedly press a claim

which a state court has rejected in the

subject litigation does not bar federal

intervention. 686 F.?d at 314 n.3. The

Court finds that it would have been

A65

futile, within the meaning of Henry, for

counsel to have asserted error in the

introduction of ostensible non-hearsay

testimony before a court which approved

the prosecutor's reliance upon that tes-

timony as evidence of guilt. Thus, I

find that Isaac does not bar considera-

tion cf petitioner's claim in this

proceeding.

I accordingly conclude that peti-

tioner's claim, first filed in this Court

in 1978, is properly before the Court.

Neither law nor equity justifies barring

petitioner from receiving consideration

of his constitutional claims.

THE CONFRONTATION CLAIM

The facts upon which the confronta-

tion claim is based are reflected in the

trial transcript, which is before the

A66

Court. There is no dispute between the

parties over the historical facts in this

case. The charges against petitioner

arose from a taxicab robbery on July 17,

1975. The only witness identifying pe-

titioner as the robber was the driver.

Petitioner's defense was misidentifica-

tion; he challenged the in-court identi-

fication by the driver at trial on the

grounds that the driver had initially

identified petitioner in a photographic

lineup while the driver was hospitalized,

suffering from wounds inflicted during

the crime, and under sedation.

™n his opening statement, the prose-

cutor referred to an encounter between

one of the investigating officers, Detec-

tive Purdy, and a young black male.

Counsel for petitioner objected on

A67

hearsay grounds. The prosecutor

proferred to the court that he did not

intend to elicit the details of the con-

versations between the detective and this

individual, but was "going to tell the

jury here what the detectives did, based

on any conversations they may have had

with this unknown young black male." The

prosecutor also advised the court that

the officers received information from

this individual under a promise not to

reveal his name, and had declined to give

the prosecutor any identifying

information.

The court ruled that the prosecutor

could advise the jury of the existence of

the individual and the actions of the of-

ficers. The prosecutors continued his

opening statement, and told the jury that

A68

the officers had further contacts with

the unidentified individual, had gone to

a particular address, and had prepared a

photographic array from which the victim

identified petitioner. The court denied

a motion for mistrial by counsel for pe-

titioner, although advising the prosecu-

tor that he had acted "contrary to the

Court's previous ruling as to what you

are able to go into."

The two detectives, Purdy and

Shipes, testified at trial to their con-

tacts with the unidentified informant.

Purdy testified that he and Shipes had

been investigating the area where the in

cident ocurred when they were approached

by a young black male with whom they

A69

conversed. Over renewed objections by

counsel, the court permitted the witness

to testify that this individual had

placed a piece of paper in the police

vehicle. A subsequent motion for mis-

trial was denied by the court.

Detective Shipes then testified,

over objection of counsel, that he found

the piece of paper and returned to the

police station, where he made a telephone

call. Shipes further testified that he

and another officer met with the uniden-

tified black man on the following day,

drove with him to the area of 1840 North-

west 60th Street, returned to the police

station, obtained a photograph of peti-

_tioner, and prepared the photographic

‘

lineup for the victim. The detective

testified he subsequently obtained a

A70

warrant for petitioner's arrest, and

arrested him at his home. Renewed ob-

jections to this testimony were over-

ruled, and motions for mistrial were

denied by the trial court.

In his closing argument, the pro-

secutor made extensive references to the

contacts with the unidentified informant,

as the following excerpts demonstrate:

Mr. Goldstein: He testified

he went to 1840 Northwest

60th Street, and as you re-

member later on, that is

where the Defendant lives.

He testified that he got out

of the car, and he conducted

an investigation on the scene

there, that he went back to

his office, and he made out

this photo display, and put

the photograph of Michael

Hutchins in the photo dis-

play, and the detective went

to the hospital....

* * *

A71

Then afterwards the detective

got out a warrant; went to

the State Attorney's Office;

went to a judge- got a war-

rant for Michael Hutchins'

arrest; went back to that

address, and where was the

address? 1840 Northwest 60th

Street.

* * *

A crime of this nature

creates fear; fear of the

victim ... . [B]Jut crimes of

this nature create violent

fear and tremendous emotions

for people who are involved

and see these types of

crimes. Especially, persons

who might know persons that

commit crimes like this. The

become very fearful of what

people that commit crimes of

this type of nature might do

to them, if they crossed

them. It creates fear in the

neighborhood: people that

have to live with this

violent nature: people who

have the fear do not want to

get involved with police

officers, they do not want to

cooperate with police offi

cers, they certainly do not

A72

want to cooperate with police

officers, and if they coop-

erate with police officers,

they certainly do not want to

physically face the accused;

the Nefendant. It creates

serious problems for every-

body.

Petitioner asserts that the police

officers' testimony introduced the sub-

stance of the informant's statements into

evidence. The informant was thus a wit-

ness against him, and his inability to

confront and cross-examine the informant

violated the Confrontation Clause of the

Sixth Amendment and the Due Process

Clause of the Fourteenth Amendment. Pe-

titioner also asserts that the closing

argument of the prosecutor further preju-

iced him at trial, as the prosecutor

urged the jury to accept as true the out-

of court statements of the witness be-

cause of his attributed fear of coming

forward.

A73

I find that these contentions have

merit. The introduction of the substance

of the informant's statements, and the

manner in which these were used at trial,

violated the Sixth and Fourteenth

Amendments.

The first aspect of a confrontation

inquiry is whether out-of-court state

ments are within the hearsay rule. I

find that the prosecution, despite

eschewing an intent to elicit the state-

ments of the informant, succeeded in pre-

senting the statements to the jury. The

police officers testified, in essence,

that they had been contacted by the in-

formant, that they had a conversation

with him, and that as a result of this

conversation they drove to a specific

address, 1840 Northwest 60th Street,

A74

where they obtained additional

information and then prepared a

photographic lineup which included a

picture of petitioner. One of the

officers further testified that he had

thereafter obtained an arrest war-

rant, and had arrested petitioner at the

same location, 1840 Northwest 60th

Street. I find that a reasonable juror

could only have concluded that the infor-

mant identified the petitioner as the

perpetrator of the robbery, and directed

the officers to his home.

This testimony was hearsay. Favre

v. Henderson, 464 F.2d 359 ("th Cir.

1977), cert.denied, 409 U.S. 947 (197%).

In Favre, as in the present case, the

prosecution presented testimony of a po-

lice officer who investigated the robbery

with which the defendant had been

A75

charged; the trial court permitted the

officer to testify that he had first

sought to arrest the defendant after

having had contact with two confiden

tial informants. As in the present case,

the witness in Favre did not quote any

statements made by the informants. Id.

at 360-61.

The Fifth Circuit held that the tes-

timony was hearsay:

Whether offered by the prose-

cution to establish identifi

cation, guilt, or both, the

testimony, when considered

in light of its logical in-

ferences, is hearsay. ‘'Hear-

say evidence is testimony in

court or written evidence, of

a statement made out of

court, such statement being

offered as an assertion to

show the truth of matters as

serted therein, and thus

resting for its value upon

the credibility of the out-

of-court asserter.' Although

the officer never testified

to the exact statements made

A76

to him by the informers, the

nature of the statements ..

was readily inferred.

[citations omitted]

464 F.2d at 362.

A finding that the testimony in this

case was hearsay does not require a

finding that the Confrontation Clause was

violated. See e.g., Dutton v. Fvans, 400

U.S. 74, 89 (*97°), That Clause imposes

two restrictions on the admission of

hearsay testimony: 1) the prosecution

must establish that the out-of-court de-

clarant is unavailable for trial; and 2)

if this predicate is satisfied, it must

be demonstrated that the statements bear

sufficient “indicia of reliability” so as

to provide the jury with an adequate

basis for evaluating its truth. Ohio v.

Roberts, 448 U.S. 56, 62-66

A77

(1980). I find that the record in

this case demonstrates that neither of

these requirements was met, and accord-

ingly that the introdu: “ion of the hear-

say testimony violated the Confrontation

Clause.

First, there was no showing that the

witness was unavailable. The prosecu-

tor's only statement was that the police

officers were unwilling to identify the

witness. That the prosecutor did not

consider these statements conclusive is

established by his representation to the

court that counsel for petitioner had the

right to seek disclosure of the witness.

The state attorney's power to compel pro-

duction of such evidence is provided by

Florida law. See Fla.Stat. §27.04,

(1981). There is no showing on this

record that the officers would have

resisted either the subpoena power of the

prosecutor or a direct order of the trial

court. Accordingly, I find that the pro-

secution failed to sufficiently demon-

strate that the witness was unavailable,

and the introduction of the out-of-court

statements through the police officers

violative the Confrontation Clause. See

Mancusi v. Stubbs, 408 U.S. 204, 212-216

(1972)- Barber v. Page, 390 U.S. 719,

722-724 (1968).

I also find that the record is

devoid of any "indicia of reliability” of

the statements, even if the unavailabi-

lity of the witness had been demon-

strated. The law requires that such

indicia appear of record. Hoover v.

Beto, 467 F.2d 516, 533 (Sth Cir. 1972),

A79

cert.denied, 409 U.S. 1086 (1972). No

basis for evaluating the credibility of

the unidentified informant appears on

this record. The conclusion of the Court

in Favre v. Henderson, supra, is directly

applicable:

The mission of the Confronta-

tion Clause is to advance a

practical concern for the

accuracy of the truth-deter-

mining process in criminal

trials by assuring that ‘the

trier of fact [has] a satis-

factory basis for evaluating

the truth of the prior state-

ment.’ In the present case,

testimony was admitted which

led to the clear and logical

inference that out-of-court

declarants believed and said

that Favre was guilty of the

crime charged. The informers

were not identified and were

net subject to cross-exami-

nation. The trier cf fact

had absolutely no ‘satisfac-

tory basis for evaluating the

A80

truth of the prio. state-

ment.

[citations omitted]

464 F.2d at 364.

I find this holding to be con-

trolling in the present case.

In this proceeding, respondent's

last line of defense is that any error

was harmless, because petitioner was

identified at trial by the victim of the

robbery. The standards for application

of the constitutional harmless-error rule

are well established. See Milton v.

Wainwright, 407 U.S. 371, 372-73 (1972);

Harrington v. California, 395 U.S. 250,

253-54 (1959); Zilka v. Estelle, 529 F.2d

388, 390 (Sth Cir. 1976)- Blackburn v.

Cross, 510 F.2d 1014, 1019 (5th Cir.

1975), cert.denied, 421 F.2d 970 (1975).

Applying these standards, the Court finds

A81

that the error in this case was not

harmless.

In Favre v. Henderson, supra, in

which there was also one positive in-

court identification (bolstered by three

other identification witnesses, who

pointed the defendant with varying de-

grees of certainty’, the court rejected a

harmless-error assertation as follows:

Considering the disputed tes-

timony in context, we cannot

conclude that its admission

was harmless ‘beyond a rea-

sonable doubt.’ The testi-

mony, with its inference on

the issues of identification

and built, may well have

tipped the scales toward a

guilty verdict. Without the

disputed testimony, the pro-

secution had a questionable

case, based as it was on two

tentative identifications

based on build, hair color,

and complexion, one dubious

positive identification, and

one vigorously challenged

positive identification.

With the disputed testimony

A82

the prosecution's case was

far stronger. This testimony

added two inferred ‘reliable’

identifications, and, inher-

ently, two assertions as to

guilt.

It cannot be said 'T am akg

loss to understand how any

normal jury, as must assume

this one to have been, could

be led to believe, let alone

be influenced by ]the wit-

ness' testimony as to the

out-of-court declarant's

statements]. The testimony

does not ‘'[fade] into prac-

tical and legal insignifi-

cance.’ Nor are we dealing

here with ‘gossamer possibi-

lities of prejudice to a de-

fendant [which serve] to’

nullify a sentence .... and

set the guilty free.’ The

error is not ‘harmless beyond

a reasonable doubt.’

[citations omitted]

464 F.?d at 366-67.

In the present case, the single

eyewitness identification was also vigo-

rously challenged, on grounds which I

cannot find to be unreasonable or

A83

facially unpersuasive to a jury. In

addition, there is also a total absence

of any corroborative testimony, and the

only legitimately-introduced testimony

against petitioner was the victim's

identification of him as the perpetrator;

this, while certainly legally sufficient,

cannot be deemed so overwhelming as to

preclude every reasonable possibility

that petitioner was unfairly prejudiced

in the presentation of his defense by the

hearsay evidence.

I further find that the closing

argument of the prosecutor, in which he

in essence urged the jury to accept the

out-of-court statements as true, and drew

for the jurors the connection between the

petitioner and the address to which the

officers were directed by the informant,

A&4

exacerbated the prejudicial impact of the

testimony, eliminating any lingering pos-

sibility that the jury would not have in-

ferred that petitioner had been identi-

fied as the guilty party by the infor-

mant. The argument of the prosecutor

was, standing alone, violative of the

Sixth Amendment, and the prejudicial

effect sufficiently egregious to preclude

a harmless error finding. United States

v. Ragano, 476 F.2d 410, 414-15 (Sth Cir.

1977), The introduction and rhetorical

use of the hearsay testimony violated the

Sixth and Fourteenth Amendments, de-

priving petitioner of a fundamentally

fair trial.

I therefore recommend that the peti-

tion for writ of habeas corpus be grant-

ed, and that petitioner be discharged

A85

custody unless the State of Florida af-

fords him a new trial within 60 days from

the date of the District Judge's Order.

Pursuant to 28 U.S.C. §636(b)(1)(C)

and Rules 8 and 10 of the Rules Governing

Section 2254 Cases in the United States

District Courts, the parties may file and

serve written objections to this Report

with The Honorable Joe Eaton, United

States District Judge, within ten (10)

days after being served with a copy of

this Report.

In Miami, Florida, February 24,

1983.

PETER NIMKOFF

PETER L. NIMKOFF

UNITED STATES MAGISTRATE

A86

Copies to:

Elliot H. Scherker

Assistant Public Defender

1351 N.W. 12th Street

Miami, FL 33125

Penny H. Hershoff

Assistant Attorney General

410 N.W. Second Avenue

Miami, FL 33128

A87

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1977

CASE NO. 76-1197

MICHAEL HUTCHINS, **

Appellant, x

Vs. x*

THE STATE OF FLORIDA, xk

Appellee. **

Opinion filed August 9, 1977

An Appeal from the Circuit Court for

Dade County, Lenore Nesbitt, Judge.

Bennett H. Brummer, Public Defender

and Elliot H. Scherker, Assistant Public

Defender, for appellant.

A88

Robert L. Shevin, Attorney General

and Margarita Esquiroz, Assistant

Attorney General, for appellee.

Before BARKDULL, HAVERFIELD and NATHAN,

JoJe

PER CURIAM.

Affirmed,

A89

CONSTITUTION AND STATUTORY PROVISIONS

Amendment V of the Constitution of

the United States provides that:

No person shall be held to

answer for a capital, or

otherwise infamous crime,

unless on a presentmet or in-

dictment of a Grand ‘ury,

except in cases arising in

the land or naval forces, or

in the militia, when in

actual service in time of War

or public danger; nor shall

any person be subject for the

same offence to be twice put

in jeopardy of life or limb;

nor shall be compelled in any

criminal case to be a witness

against himself, nor be de-

prived of life, liberty, or

property, without due process

of law; nor shall private

property be taken for public

use, without just

compensation.

Amendment VI of the Constitution of

the United States provides that:

In all criminal prosecu

tions, the accused shall

enjoy the right to a speedy

A90

and public trial, by an im-

partial jury of the State and

district wherein the crime

shall have been committed,

which district shall have

been previously ascertained

by law, and to be informed of

the nature and cause of the

accusation; to be confronted

with the witnesses against

him; to have compulsory pro-

cess for obtaining witnesses

in his favor, and to have the

Assistance of Counsel for his

defence,

Amendment XIV of the Constitution of

the United States provides:

Section 1. All persons

born or naturalized in the

United States, and subject to

the jurisdiction thereof, are

citizens of the United States

and of the State wherein they

reside. No State shall make

or enforce any law which

shall abridge the privileges

or immunities of citizens of

the United States: nor shall

any State deprive any person

of life, liberty, or pro °

perty, without due process of

law; nor deny to any person

within its jurisdiction the

A91

equal protection of the laws.

Title 28, United States Code,

Section 1257 provides:

Final judgments or decrees

rendered by the highest court

of a State in which a deci-

cision could be had, may be

reviewed by the Supreme Court

as follows:

(1) By appeal, where is

drawn in question the valid-

ity of a treaty or statute of

the United States and the de-

cision is against its

validity.

(?) By appeal where is

drawn in question the valid-

ity of a statute of any state

on the ground of its being

repugnant to the Constitu-

tion, treaties or laws of the

United States, and the deci

sion is in favor of its

validity.

(3) By writ of certiorari,

where the validity of a

treaty or statute of the

United States is drawn in

question or where the valid

ity of a State statute is

drawn in question on the

ground of its being repugnant

to the Constitution, trea-

tiers or laws of the United

States, or where any title,

A92

right, privilege or immunity

is specially set up or

claimed under the Constitu-

tion, treaties or statutes

of, or commission held or

authority exercised under,

the United States. June 25,

1948, c. 646, 62 Stat. 92°,

For the purposes of this

section, the term “highest

court of a State" includes

the District of Columbia

Court of Appeals.

Title 28, United States Code,

Section 2254, provides inter alia that:

(a) The Supreme Court,

Justice thereof, a circuit

judge. or a district court

shall entertain an applica-

tion 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.

(b’ An application for a

writ of habeas corpus in

behalf of a person in custody

pursuant to the judgment of a

State court shall not be

A93

granted unless it appears

that the applicant has ex-

hausted the remedies avail-

able in the courts of the

State, or that there is

either an absence of avail-

able State corrective pro-

cess or the existence of cir-

cumstances rendering such

process ineffective to pro-

tect the rights of the pri-

soner.

be deemed to have exhausted

the remedies available in the

courts of the State, within

the meaning of this section,

if he has the right under the

law of the State to raise, by

any available procedure, the

question presented.

A9G

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

OFFICE OF THE CLERK

56 FORSYTH STREET, N.W.

ATLANTA, GEORGIA 30303

December 7, *°9R3

Penny H. Brill, Esquire

Asst. Attorney General

401 Northwest 2nd Avenue, #820

Miami, FL 33128

No. 83-5256 - MICHAEL HUTCHINS -vs-

LOUIE L. WAINWRIGHT, ET AL.

(District Court No.

82-420-CIV-A'T”)

MANDATE STAYED TO AND INCLUDING

JANUARY 6, 1984

This court has this day granted a stay of

issuance of the mandate to the date as

shown above. If during the period of the

stay there is filed with this office a

notice from the Clerk of the Supreme

Court that the party who has obtained the

stay has filed a petition for the writ in

that Court, the stay shall continue until

final disposition by the Supreme Court.

A95

Upon the filing of a copy of an order of

the Supreme Court denying the petition

for writ of certiorari, the mandate shall

issue immediately under Rule 41, FRAP.

Under revised Rule 19.1 of the Supreme

Court, effective June 30, 1980, a request

to certify the record prior to action by

the Supreme Court on the petition for

certiorari should not be made as a matter

of course but only when the record is

deemed” essential to a proper under-

standing of the case by that Court.

A copy of the opinion, judgment, or Rule

25 Decision, and denial of rehearing are

still required by the Supreme Court to be

incorporated as an appendix to your peti-

tion. Enclosed are copies of the said

documents which have been entered in this

cause,

Very truly yours,

SPENCER D. MERCER, CLERK

By: HENRIETTA BARNES

Deputy Clerk

Encls.

cc: Elliot H. Scherker, Esquire

A96

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CASE NO. 83-5256

MICHAEL HUTCHINS,

Petitioner/Appellee,

vs.

LOUIE L. WAINWRIGHT, Secretary,

Department of Corrections,

State of Florida,

Respondent/Appellant,

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF

FLORIDA

BRIFF OF RESPONDFNT/APPELLANT

Nature of Preference

Habeas Corpus, 28 U.S.C. $2254

JIM SMITH

Attorney General

Tallahassee, Florida

A97

PENNY HERSHOFF BRILL

Assistant Attorney

General

Ruth Bryan Owen

Rohde Building

Florida Regional

Service Center

49* N.W. 2nd Avenue

(Suite 820) °

Miami, Florida 33128

(305) 377-5441

A98

THE DISTRICT COURT ERRED IN

FINDING THAT THE PETITIONER'S

CONFRONTATION CLAUSE CLAIM

HAD BEEN SUFFICIENTLY PRE-

SENTED TO THE STATE APPELLATE

COURTS, WHERE THE CLAIM WAS

PRESENTED IN ONLY STATE

TERMS, AND WAS FRAMED IN

TERMS OF PREJUDICIAL PROSECU-

TORIA’ COMMENTS, AND NOT IN

TERMS OF A SIYTH AMENDMENT

CONFRONTATION CLAUSE VIOLA-

TION.

The Respondent strenously submits

that the district court erred in finding

that the substantial equivalent of the

confrontation claim was presented to the

state appellate courts. Because the

state appellate opinion was a per curiam

affirmance without a written opinion,

Hutchins v. State, 349 So.2d 1237 (Fla.

3d DCA 1977), this Court must look to the

state appellate briefs to determine

whether the substantial equivalent of the

A99

confrontation claim was presented. The

issue on direct appeal was framed as

follows:

Whether the trial court erred

in allowing prosecutorial

comments regarding the inves-

tigating officers’ encounters

with an unidentified third

person to pervade the entire

trial, where the only pur-

pose of this argument was to

lead the jury to draw the im-

permissible inference that

this third person had identi

fied the defendant as the

perpetrator of the charged

crime, but was afraid to

testify in court.

See Exhibit "A", Point II on

Appeal, at 11.

In support of this allegation of error,

the Petitioner cited state cases that

admonished prosecutors from making

comments that could not be reasonably

inferred from the evidence or which was

A100

inflammatory and calculated to raise

passion or prejudice in the minds of the

jury. See Exhibit "A", Brief of Appel-

lant at 22-24. None of these cases con-

tained any reference to any confrontation

clause claims,’

7aAdams v. State, 192 So.2d 762 (Fla.

1966) (comments by prosecution that

equated victim of homicide to wives and

relatives of jurors, and that defense

counsel's statements "perverted and dis-

torted things" and "violated his oath as

a lawyer and human being "were unduly

prejudicial and constituted error) -

Goddard v. State, 143 Fla. 28, 196 So.

(prosecutor's statements that

defendant was "low down scoundrel" and

"skunk" and there has never been an ounce

of remorse in the "no good black heart of

that scondrel"- although improper, held

not reversible in light of overwhelming

evidence); -lohnson v. State, 88 Fla. 461,

102 So. 549 (1974) (prosecutor's reference

to the defendant that he “went out there

for what cats and dogs fight for," and

"is a brute", were reversible error):

Richardson v. State, 335 So.7d 835 (Fla.

Zth DCA 1976)(prosecutor's remarks that

he "could have brought in a lot of police

officers" and that case could have lasted

A101

It is obvious that the actual gist

of Petitioner's allegation of error was

that the prosecutor's arguments were

based on evidente not before the court at

all and if it was a constitutional viola-

tion, it was a violation of his rights

not to be deprived of life, liberty or

property, without due process of law

under the Fifth Amendment of the United

Footnote / (continued) longer constituted

reversible error); James v. State, 334

So.2d 83 (Fla. 3d DCA 19/76) (prosecutor's

remark that pushers infest other

individuals with his disease of heroin

although improper, was not so prejudicial

as to require a mistrial); Silvestri v.

State, 332 So.2d 351 (Fla. 4th DCA

(prosecutor's remark that the

state's key witnesses were "obviously

able to convince the police of their

truthfulness or they would have been the

ones on trial was prejudicial error)

Thompson v. State, 318 So.2d 549 (Fla.

4th DCA 1975)(prosecutor's comment, con-

cerning additional witnesses who could of

been called were prejudicial in that they

lead the jury to believe that there was

other evidence).

Al02

States Constitution. This can be deter-

mined by reviewing the portions of the

prosecutor's arguments emphasized by the

Petitioner in his brief. The Petitioner

was especially concerend with the prose-

cutor's explanation as to why the young

black male did not testify, and his

request to the jury to not only rely on

what they heard, but to consider all the

circumstances. See Exhibit "A", Appel-

lant's brief at 21, 23. Respondent sub-

mits that if the Petitioner had intended

to raise the issue in terms of a confron-

tation clause violation, he most certain-

ly would have done so. Petitioner was

able to frame his first issue on appeal,

that the trial court erred in excluding a

defense witness, as a basis for a viola-

tion of the Petitioner's due process

A103

right to prepare and present a defense

under the Sixth and Fourteenth Amend-

ments to the United States Constitution.

See Exhibit "A", Appellant's Brief at 12.

Further evidence that the Petitioner

did not raise the substantial equivalent

of a confrontation claim in the state

appellate court, is found by reviewing

the state's brief. The state argued in

its brief that the prosecutor properly

argued the facts which were established

at trial and which were reasonably in-

ferred from the facts established. The

state cited to the portions in the tran-

script in which the two officers testi-

fied about their contact with the young

black male. See Exhibit "B", Appellee's

Brief at 17-20. The state also argued

that trial counsel "never moved for a

A104

mistrial or asked the trial court to take

any action during the prosecuting attor-

ney's argument or at the conclusion

thereof" thus, he did not properly pre-

serve his assertions regarding the prose-

cutorial arguments for appeal. See

Exhibit "B", Appellee's Brief at 27.

Thus, it is obvious that the state was

not put on notice that the Petitioner was

raising a violation of the confrontation

clause of the Sixth Amendment and the Due

Process Clause of the Fourteenth Amend-

ment.

Respondent submits that it is evi-

dent that the Petitioner did not raise

the substantial equivalent of a confron-

tation clause claim in the state courts.

Although, a hearsay objection may be

sufficient to raise a confrontation issue

A105

if raised in a confrontation posture,

Thomas v. Estelle, 582 F.2d 939 (5th Cir.

1971) such an objection was not presented

on the appellate level in the instant

case. See Daye v. Attorney General of

State of New York, 696 F.2d 186, 193 (2d

Cir. 1982)(en banc).

In Thomas v. Estelle, supra, the

hearsay objection was made in terms that

indicated that the defense counsel wished

the witness to be brought down to the

courtroom so he could question her. In

the instant case, although the Peti-

tioner's trial counsel objected to the

testimony on hearsay grounds as well as

complaining that he was never given an

opportunity to discover the young black

male's identity, Petitioner's appellate

counsel chose to frame the issue on

A106

appeal only in terms of what the prose-

cutor said concerning the young black

male and his reasons for not being a wit-

ness, in his closing argument. Not only

did Petitoner's appellate counsel not

phrase the issue in terms of a confron-

tation clause violation, he did not even

allege that there was a violation of the

hearsay rule.8

Respondent submits that the district

court's finding that the substance of the

confrontation claim was presented to the

state appellate court is clearly in

8This is because at the time of the

Petitioner's trial the officers’ tes-

timony as to the manner in which they

investigated the case, testifying what

they did, pursuant to information (not

related in court) received from the in-

formant, was permitted in Florida as not

being hearsay. Collins v. State, 65

So.2d 61 (Fla. 1953); Kirby v. State, 44

Fla. 81, 32 So. 834 (1902).

A107

error. It is well established that under

28 U.S.C. $2254, a federal habeas peti-

tioner is required to have provided that

state courts with a "fair opportunity” to

apply controlling legal principles to the

facts bearing upon his constitutional

claim. Picard v. Connor, 404 U.S. 270,

276-77 (1971). Furthermore, the habeas

petitioner must have "fairly presented”

to the state courts the "substance" of

his federal habeas corpus claim. Picard

v. Connor, 404 U.S. at 275, 277-78. It

is not enough that all facts necessary to

support the federal claim were before the

state courts or that a somewhat similar

state law claim was made. Anderson v.

Harless, U.S. , 103 8.6. 25> srt

(1982). The argument raised in federal

court must be the substantial equivalent

A108

of that presented to the state courts "to

insure that the 'method of analysis’ was

"readily available to the state court.”

Santana v. Felton, 685 F.2d 71, 74 (3d

Cir. 1982).

Where a petitioner, on his direct

appeal to the state appellate court, pre-

sented his claims in state terms only,

the petitioner has failed to give the

state courts a fair opportunity to con-

sider his federal claims of error.

Gulliver v. Dalsheim, 687 F.2d 655, 657

(7th Cir. 1982); Santana v. Fenton,

supra; Steele v. Taylor, 684 F.2d 1193,

1206 (6th Cir. 1982); Winfrey v. Maggio,

664 F.2d 550, 553 (5th cir. 1981); Hart

v. Estelle, 634 F.2d 987, 989 (Sth Cir.

1981); Thomas v. Wyrick, 622 F.2d 411,

413 (8th Cir. 1980)- Conquest v.

A109

Mitchell, 618 F.2d 1053, 1056 (4th Cir.

1980); Johnson v. Metz, 609 F.2d 1052,

1054 (2d Cir. 1979). Alleging lack of a

fair trial does not sufficiently alert a

state court to a contention that the

trial court failed to comport with due

process guarantees. Kirksey v. Jones,

673 F.7d 58, 59-49 (7d Cir. 1987); Thomas

v. Wyrick, supra at 1054-1055. A habeas

petitioner will not be deemed to have

fairly presented his claim to the state

courts though the prior state proceedings

technically asserted the same constitu-

tional deficieny, the same facts that are

urged in the federal court, are used to

support of a different legal theory.

Hart v. Estelle, supra at 989. See also

Picard v. Connor, supra (claim in state

court that indictment was amended in such

A110

a way as to violate the Fifth Amendment,

was not sufficient to apprise the state

scourts of a violation of the Equal Pro-

tection Clause of the Fourteenth Amend-

ment). Furthermore, a defendant's ci-

tation to a state court decision predi-

cated solely on state law will not be

sufficient to fairly apprise a reviewing

court of a potential federal claim mere-

ly because the defendant in the cited

case advanced a federal claim. Anderson

v. Harless, supra, 103 S.Ct. at 278, n.3.

The Respondent submits that where

the Petitioner in his brief to the state

appellate court presented the facts, but

framed the issue on appeal in terms of

prejudicial prosecutorial comments, and

not in terms of whether the testimony of

the police officers concerning the young

All1

black male was hearsay and violated his

right to confrontation, or even whether

the prosecutors comments by themselves

were hearsay or violated the petitioner's

right to confrontation, the "substance"

of his confrontation claim was not fairly

presented to the state courts.

The lack of citation to federal con-

stitutional provisions and federal au-

thority in the Petioner’s appellate brief

must be given greater weight by this

Court than the district court did. This

is because it is well established that

because evidence is admitted in viola-

tion of the hearsay rule, it does not

lead to the automatice conclusion that a

defendant's confrontation rights have

been violated. California v. Green, 399

U.S. 149, 156 (1970). See also Daye v.

A112

Attorney General of State of New York,

supra. If Petitioner's state appellate

counsel had intended to raise a confron-

tation claim, he could of cited the two

Fifth Circuit Cases, United States v.

Ragano, 476 F.2d 410 (5th Cir. 197%) and

Favre v. Henderson, 464 F.2d 359 (5th

Cir.)., cert. denied, 409 U.S. 942

(1972), as he did in his memorandum in

support of petitioner's writ of habeas

corpus. Thus, Respondent objects to the

Magistrate's finding that the substantial

equivalent of the present confrontation

claim was raised in the state appellate

court.

Respondent submits that this failure

to fairly present this i®sue to the state

A113

courts is not one of non-exhaustion 9

but rather one of waiver under the doc-

trine of Wainwright v. Sykes, 433 U.S.

72, 97 S.Ct. 2497 (1977). In Wainwright,

the United States Supreme Court held that

failure to make a timely objection under

Florida's contemporaneous objection rule

to the admission of his inculpatory

statements, absent a showing a cause for

the noncompliance with the procedural

rule and some showing of actual preju-

dice, bars federal habeas corpus review

“The respondent is asserting that the

Petitioner has waived his claim, but if

this Court finds there has been no waiver

because the Petitioner still has a state

remedy, then respondent asserts in the

alternative, that this claim is unex-

hausted. See, e.g. Rose v. Lundy, _ U.S.

» See Bioe.. iT38 (T1982); Pitchess v.

Davis, 421 U.S. 482, 98 S.ct. 1748

(1975); Picard v. Connor, supra; see also

Gulliver v. Dalsheim, supra; are Vv.

lowa, 581 F.2d 727 (8th ete °

Al14

of the defendant's Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602 (1966) claim.

This cause and prejudice requirement of

Wainwright v. Sykes, has been extended to

include claims which the defendant has

failed to include on direct appeal in

compliance with state procedural appel-

late requirements. See, e.g., Wright v.

Bombard, 638 F.2d 457 (2d Cir. 1980);

Forman v. Smith, 633 F.2d 1055 (4th Cir.

1980); Evans v. Maggio, 557 F.2d 429 (5th

Cir. 1977); Cole v. Stevenson, 620 F.2d

430 (5th Cir. 1977); Carter v. Scully,

533 F.Supp. 257 (S.D.N.Y. 1982). Fur-

thermore, issues presented in the state

trial court but not presented to the ap-

pellate court are deemed abandoned.

Gorham v. Wainwright, 588 F.2d 178, n.2

(5th Cir. 1979)- Galtieri v. Wainwright,

A115

582 F.2d 348, n.8 (5th Cir. 1978);

Gardner v. Blackburn, 569 F.2d 856 (5th

Cir. 1978); Sneed v. Blackburn, 569 F.2d

854 (5th Cir. 1978); O'Berry v.

Wainwright, 546 F.2d 1204 (5th Cir.

1977); Henzel v. Florida, 475 F.2d 1271

(Sth Cir. 1973).

Respondent submits that Wainwright

v. Sykes, is applicable to the instant

case because under state procedural

rules, the Petitioner would be precluded

from raising the confrontation clause

issue on collateral review. See, e.g.,

Engle v. Isaac, U.S. _, 102 S.Ct.

1558, 1570 n.28 (1982). Under Rule 3.850

of the Florida Rules of Criminal Proce-

dure, the Petitioner would be precluded

from raising this issue, because it is a

matter which could have been raised on

A116

direct appeal. Florida courts have con-

sistently held that issues which could

have been raised on direct appeal from

conviction will not support a subsequent

collateral attak by way of a motion for

ost-conviction relief. See, e.g.

p ’ ,

Alvord v. State, 396 So.2d 184, 191

(1981); Adams v. State, 380 So.2d 423,

424 (Fla. 1980)- Harvey v. State, 383

So.2d 770, 771 (Fla. 3d DCA 1980). Thus,

Respondent submits that because

Petitioner's confrontation clause claim

is foreclosed from state review due to

procedural default, this Court must

reverse the district court and dismiss

the confrontation clause claim absent a

showing of cause for the noncompliance

and some showing of actual prejudice

resulting from the alleged constitu-

tional violation.

A117

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CASE NO. 83-5256

MICHAEL HUTCHINS, **

Petitioner/Appellee, belied

vs. **

LOUIE L. WAINWRIGHT, **

Secretary, Department of

Correction, State of Florida, **

Respondent/Appellant. oe

MOTION FOR REHEARING

COMES NOW, Respondent/Appellant,

LOULE 1.. WAINWRIGHT, by and through his

undersigned counsel moves this Honorable

Court for rehearing in the above styled

cause and as grounds therefore states as

follows:

A118

Te On September 19, 1983, this

Court filed its opinion in the above

cause affirming the district court's

grant of the Petitioner/Appellee's Pe-

tition for Writ of Habeas corpus, on the

basis that the Petitioner/Appellee had

been denied his Sixth Amendment right to

the confrontation of witnesses.

2. In its opinion, this Court held

that the confrontation issue, although

“obliguely stated", was sustantively

raised before the state appellate court.

See Slip Opinion at p.4855. In reaching

this conclusion, this Court has misappre-

hended and overlooked the following facts

and law:

1. This Court states at p.4855 of

the Slip Opinion that "Respondent con-

tends that the petitioner, on direct

A119

appeal, raised the issues of the admis-

sion of hearsay evidence and prosecu-

torial misconduct, not a sixth amendment

confrontation clause claim." (emphasis

added). However, in its brief, the Re-

spondent/Appellant stated specifically:

Not only did Petitioner's ap-

pellate counsel not phrase

the issue in terms of a con-

frontation clause violation,

he did not even allege that

there was a violation of the

hearsay rule,

Brief of Respondent/Appellant

at p.34 (emphasis added)

Again, at pp.36-37 of its brief, the

Respondent/Appellant stated:

The Respondent submits that

where the Petitioner in his

brief to the state appellate

court presented the facts,

but framed the issue on ap-

peal in terms of prejudicial

prosecutorial comments, and

not in terms of whether the

testimony of the police offi-

cers concerning the young

A120

black male was hearsay and

violated his right to con-

frontation, or even whether

the prosecutors comments by

themselves were hearsay or

violated the petitioner's

right to confrontation, the

"substance" of his confron-

tation claim was not fairly

presented to the state

courts.

Respondent/Appellant went on to state in

f ° of its brief that the reason there

was no allegation of a violation of the

hearsay rule was because at the time of

the Petitioner/Appellee's trial, the of-

ficer's testimony as to the manner in

which they investigated the case, testi-

fying what they did, pursuant to informa-

tion (not related in court) received from

the informant, was permitted in Florida

courts as not being hearsay, citing

Collins v. State, 65 So.2d 61 (Fla.

A121

1953); Kirby v. State, 44 Fla. 81, 32 So.

836 (1902). Thus, it is clear that the

Respondent/Appellant never contended or

conceded that the issue of the admis

sion of the hearsay evidence had been

raised on direct appeal.

A122

IN THE DISTRTCT COURT OF APPEAL OF

FLORIDA

THTRD DISTRICT

CASE NO. 76-1197

MICHAEL HUTCHINS,

Appellant,

vs.

THE STATE OF FLORIDA,

Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN AND

FOR DADE COUNTY, FLORIDA

BRIEF OF APPELLANT

PHILLIP A. HUBBART

Public Defender and

Ai23

ELLIOT H. SCHERKER

Assistant Public Defender

Eleventh Judicial Circuit

of Florida

1351 N.W. 12th Street

Miami, Florida 33'°”*

Attorneys for Appellant

Al 24

INTRODUCTION

In the Court below the appellant,

Michael Hutchins, was the defendant and

the appellee, the State of Florida, was

the prosecution. ‘'n this brief, the

parties will be referred to as they stood

in the Court below. The symbol "R” will

be used to designate the record on ap-

peal. All emphasis is added unless

otherwise indicated.

STATEMENT OF THE CASE AND FACTS

On September 4, 1975, an information

was filed charging the defendant with two

counts: I robbery and II - assault

with intent to commit murder. (R. 217-

219) On September 5, 1975, the defendant

was arraigned and stood mute. The Court

directed the entry of a plea of not

guilty, adjudged the defendant insolvent

A125

and appointed the Public Defender to re-

present him. (R. 220)

Jury trial commenced before the

Honorable Lenore C. Nesbitt, Judge of the

Eleventh ‘udicial Circuit in and for Dade

County, Florida on Apil 13, 1976. (R.

1-209, 225-229)

Prior to the prosecution's opening

statement, the defendant proffered cer-

tain evidence that he intended to present

to support his defense. (R. 4-6) This

evidence was that another crime with the

same modus operandi had been committed

about a month prior to the crime charged

in the information. (R. 4-5) The fol-

lowing similarities between the two

crimes were proffered: both victims

were driving taxicabs for the Diamond Cab

Company at the time of the robbery: both

A126

drivers had picked up the robber as a

passenger at the Veteran's Administration

Hospital pursuant to a radio call; both

drivers directed to go to the same loca-

tion, which, upon arrival, was discovered

to be a vacant lot: both drivers were

threatened by the robber with a knife;

both drivers gave the police the same de-

scription of the robber. (R. 4-5)

The driver in the first robbery was

shown phtographs and identified the de-

fendant as the perpetrator of the crime.

(R. 5) However, in a live line-up, he

identified two other men as the perpe-

trator, not the defendant. (R. 5) In the

case at bar, the driver similarly identi-

fied the defendant after being shown pho-

tographs. (R. 4) However, here, there

was no subsequent live line-up. (R. 5)

Al27

The defense counsel argued that if there

had been an identification at the line-up

in the first case, this evidence would be

admissible under Williams v. State, 110

So.2d 654 (Fla. 1959); therefore, evi-

dence of the lack of identification

should be likewise be admitted. (R. 5-6)

The defense counsel further argued that

this evidence was clearly relevant since

the identification of the perpetrator of

the crime was the sole issue in this

case,

The prosecution objected to the ad-

mission of this evidence. (R. 6-7, 8)

The Court ruled that the Williams

rule was not applicable to prove misiden-

tification and therefore that this prof-

ferred evidence was inadmissible. (R. 9)

During its opening statement, the

y Al 28

prosecution referred to an encounter that

the arresting officer had with a third

person, prior to the defendant's arrest.

(R. 23’ The defendant objected to any

allusion being made to any testimony that

this witness may have. (R. 33) The

ground for this objection was that this

witness was not going to testify, and

that the defendant had been unable to

learn his identity. (R. 23) Outside the

jury's presence, the prosecution prof-

fered that during his investigation of

the robbery, the police detective had a

conversation with a young black male who

subsequently left his name and phone num-

ber in the police car. (R. 25) This

person later gave the detective informa-

tion which led to the defendant's arrest.

(R. 25)

A129

The trial court ruled that the pro-

secution could “refer to the fact that

there was a bystander; someone that was

seen at the crime and that the person at

the scene of the crime left some nota-

tion, and as a result of the notation,

the officer followed up his investiga-

tion.” (R. 38) The trial court empha-

sized that the defendant should have made

a formal motion to have this witness

produced, (°, 34, 38, 39)

Thereupon, the jury returned, and

the prosecution resumed it opening state-

ment. (R. 40) Over the defendant's

objection, the prosecution stated that

Detective Purdy would testify that he saw

a young black male bystander and spoke

with him; and, the bystander subsequently

Al 30

dropped a slip of paper into the detec-

tive's police car. (R. 40) tn addition,

the prosecution disclosed that Detective

Shipes would testify that he accompanied

Detective Purdy to the scene of the

crime. (R. 40) After his investigation

of the scene, Detective Shipes returned

to the police car

...and there was a piece of

paper in that car with some

writing on it, and that when

he got back to the office, he

made a phone call, and as a

result of that phone call,

the next morining he and

another detective met with a

young black male and that the

three of them drove to 1840

--- (R. 41)

Thereupon, the defendant interposed an*”

objection and requested a side bar. (R.

41) The Court sustained this objection,

stating that the prosecution's statement

was contrary to the Court's previous

Al31

ruling. (R. 42) The trial court denied

the defendant's motion for a mistrial and

asked if the defendant wanted the jury to

be given a corrective instruction. (R.

42) The defendant declined this offer,

stating that any corrective instruction

would worsen the problem. (R. 43)

During the defendant's opening

statement, defense counsel stated that

the only issue was the identify of the

person who perpetrated the crime. (R.

45)

Wesley Preston testified that on the

day in question, he was employed as a

taxicab driver by the Diamond Cab Con-

pany. (R. 51) As the result of a radio

call, Preston drove to the Veteran's

Administration Hospital and picked up a

passenger. (R. 52) Pursuant to the

A132

passenger's request, Preston drove to

N.W. 61st Street and 22nd Avenue. (R.

43-55) ** this address, Preston observed

vacant lots on both sides of the street.

(R. 55) Thereupon, Preston turned to the

back seat of the car, where the passenger

was sitting. The passenger stabbed

Preston with a knife. While the car

still rolling, Preston got out. The pas-

senger stopped the car and went back to

where Preston lay in the road. (R. 57)

The passenger had a knife in his hand.

He picked up money that had fallen out of

Preston's pocket and then left “R. 58)

Preston was subsequently transported

to the hospital. (R. 59-60) The

following day Preston was shown a photo

display and identified the defendant as

the passenger in the cab. (R. 61)

A133

Detective James Purdy testified that

on the day in question, he proceeded to

the robbery scene in response to a radio

call. (R. 82-83) When he arrived at the

scene Detective Purdy conducted an area

canvas which he defined as:

A neighborhood contact with

the people in the area that

may have possibly seen what

occurred. (R. 84)

At this point, the defendant inter-

posed an objection and requested a side-

bar conference. (R. 84) The defendant

argued that this testimony was improper.

(R. 85) The court overruled this objec-

tion, but instructed the prosecution to

stay within the confines previously

delineated. (R. 86)

Purdy further testified that he had

occasion to talk to people during the

A134

area canvass. (R. 86) He observed a

young black male drop a piece of paper in

his police car. (R. %7-88) The defen-

dant objected to this testimony and moved

for a mistrial. (R. 88) The Court

denied the motion for a mistrial, and

instructed the prosecution to pursue

another line of questioning. (R. 88)

Prior to calling Detective Norman

Shipes as a witness, the prosecution

proffered the nature of Shipe's testi-

mony. (R. 94-95) The prosecution stated

that Shipes would testify that after he

completed his investigation at the rob-

bery scene, he returned to his office and

made a telephone call:

A135

The next morning he met

with a young black male and

another detective, proceeded

to 1840 N.W. 60th Street,

looked at an apartment, got

out, made an investigation,

talked to people in the area,

went back to his office and

made out a photo display.

The defendant objected to this tes-

timony on the ground that mentioning the

black male was irrelevant, and the prose-

cution's only purpose in this testimony

was to lead to the impermissible infer-

ence that the black male in the car had

pointed out the defendant. Furthermore,

there was no evidence, other than this

testimony, that this black male even

existed since neither the prosecution nor

defendant had spoken with him. (R.

95-96)

The trial court overruled this

A136

objection on the ground that the defen-

dant previously had an opportunity to

obtain the black male's name through a

proper motion. (R. 96)

Detective Norman Shipes testified

that in the day in question, he investi-

gated the scene of the robbery. (R. 99)

When he returned to his police car, after

this investigation at the scene, he found

a piece of paper lying on the front seat

of the car. (R. 100) This paper had an

individual's name, address and phone num-

ber written on it. (R. 100) 4is-

cussed this paper with Purdy, and

subsequently returned to his office,

where he made a phone call. (R. 100)

The next day, Shipes met with a youn

black male in the vicinity of the rob-

bery. (R. 101) The defendant objected

A137

to this testimony on the grounds pre-

viously argued, and requested a side-

bar conference. (R. 101) The trial

court did not allow a side-bar, and

overruled the objection. (R. 101)

Shipes further testified that he

drove with the young black male to 1840

N.W. 60th Street and contacted some

residents of that area. He then drove

the young black male back to the location

where they had first met, and proceeded

back to his office. (R. 101)

Thereupon, the defendant requested a

side-bar, wherein he renewed his objec

tion and moved for a mistrial. (R. 102)

The Court overruled this objection,

stating:

A138

..-For reasons previously

given by the Court, that the

Public Defender was aware of

this person, but made no

motion to produce him, and

the fact that the relevance

of any of this is not harmful

testimony, I deny the motion

for mistrial, and I overrule

the objection. (R. 102)

Shipes further testified that when

he returned to his office he obtained a

photograph of the defendant and made a

photo display. (R. 102) Preston identi-

fied the defendant's picture in this pho-

to display. (R. 105-106) The photo dis-

play was received into evidence, marked

as State's Exhibit I. (R. 107)

Shipes further testified that he

subsequently obtained an arrest warrant

and arrested the defendant at his

residence, 1840 N.W. 60th Street. (R.

107-108)

A139

At the close of the State's case,

the defendant moved for a judgment of

acquittal. (R. 122) The trial ,court

denied this motion as to both Count I and

Count II of the information. (R. 127,

129) Thereupon, the defendant renewed

all previous motions, including the mo-

tions for mistrial. The trial court

denied these motions. (R. 129)

Thereupon, the defendant renewed his

request to call, as a defense witness,

the victim of a very similar crime, whose

name appeared on the prosecution's wit-

ness list. (R. 130-132) The trial court

denied this request. (R. 132) ™ re-

upon, the defense rested and renewed all

previous motions. (R. 134) The Court

A140

reduced Count II of the information to

assault with intent to commit murder in

the second degree, and denied all other

previous motions. (R. 136) The defense

counsel proffered that he had curtailed

his opening statement to conform with the

Court's ruling which excluded the testi-

mony of the first victim, and would like-

wise curtail his closing argument. (R.

136)

During the State's closing argument,

the prosecutor reiterated the testimony

of Purdy and Shipes regarding the role of

the young black male in their investiga-

tion. (R. 166) The defendant objected

for the purpose of the record. (R. 166)

The Court instructed the defendant to

wait until the conclusion of the prose-

cutor's argument to renew his objection.

(R. 167).

iii

A141

The prosecutor further argued the

following:

- « - crimes of this nature

create violent fear and tre-

mendous emotions for people

who are involved and see

these type of crimes. Es-

pecially, persons who might

know persons that commit

crimes like this. They be-

come very fearful of what

people that commit crimes of

this type of nature might do

to them, if they crossed

them. ‘'t creates fear in the

neighborhood; people that

have to live with this vio-

lent nature; people who have

the fear do not want to get

involved with police offi-

cers, they do not want to co-

operate with police officers,

and if they cooperate with

police officers, they cer-

tainly do not want to come to

court. They do not want to

physically face the accused;

the defendant. It creates

serious problems for every-

body. (R. 169-170)

Thereupon, the defendant objected. The

trial court stated the she would allow

A142

the defendant time to object at the

conclusion of the State's argument. (R.

170) The prosecutor continued his argu-

ment as follows:

tT ask you ladies and gen-

tlemen, not only to rely on

what you heard here, but to

consider all the circum-

stances involved in this

Stems... « « « (R. 170)

Thereupon, the defendant renewed his

objection. The Court, in effect, sus-

tained this objection by stating:

- «- IL do not think you

ought to pursue this line of

endeavor any more. * think

you ought to proceed to a new

area. (R. 170)

The jury found the defendant guilty

of both counts of the information. (R.

205, 257, 258) Thereupon, the Court

entered an adjudication of guilt of the

defendant as to both counts. (R. 207,

259-260)

Al43

On April 23, 1976, the defendant was

sentenced as follows: as to Count I of

the information, to twenty years incar-

ceration in the state penitentiary; (R.

212, 261) as to Count II of the informa-

tion, to ten years incarceration in the

state penitentiary, to be served conse-

cutively with the presence imposed in

Count I. (R. 212-213)

A motion for a new trial was filed

on April 23, 1976. (R. 262) This motion

was denied on May 18, 1976. (R 777) A

notice of appeal was timely filed on June

17, 1974, (R. 263° This appeal follows.

A144

POINTS INVOLVED ON APPEAL

WHETHER THE TRIAL COURT ERRED

IN EXCLUDING THE TESTIMONY OF

THE ONLY DEFENSE WITNESS ON

THE GROUND OF ILRRELEVANCY

WHERE THE DEFEN"ANT PROFFERED

THAT THIS TESTIMONY WAS RELE-

VANT TO THE IDENTITY OF THE

PERPETRATOR OF THE CRIME AND

WOULD EXCULPATE THE DEFEND-

DANT, THEREBY VIOLATING THE

DEFENDANT'S DUE PROCESS RIGHT

TO PREPARE AND PRESENT A DE-

FENSE UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE

CONSTITUTION OF THE UNITED

STATES AND ARTICLE I, §§ 9,

16 OF THE CONSTITUTION OF THE

CONSTITUTION OF THE STATE OF

FLORIDA,

WHETHER THE TRIAL COURT ERRED

IN ALLOWING PROSECUTORIAL

COMMENTS REGARDING THE INVES-

TIGATING OFFICERS' ENCOUNTERS

WITH AN UNIDENTIFIED THIRD

PERSON TO PERVADE THE ENTIRE

TRIAL, WHERE THE ONLY PURPOSE

OF THIS ARGUMENT WAS TO LEAD

THE JURY TO DRAW THE IMPER-

MISSIBLE INFERENCE THAT THIS

A145

THIRD PERSON HAD IDENTIFIED

THE DEFENDANT AS THE PERPE-

TRATOR OF THE CHARGED CRIME,

BUT WAS AFRAID TO TESTIFY IN

COURT.

A146

ARGUMENT

THE TRIAL COURT ERRED IN EX-

CLUDING THE TESTIMONY OF THE

ONLY DEFENSE WITNESS ON THE

GROUNG OF IRRELEVANCY WHERE

THE DEFENDANT PROFFERED THAT

THIS TESTIMONY WAS RELEVANT

TO THE [DENTITY OF THE PER-

PETRATOR OF THE CRIME AN™

WOULD EXCULPATE THE DEFEN-

DANT, THEREBY VIOLATION THE

DEFENDANT'S DUE PROCESS RI°HT

TO PREPARE AND PRESENT A DE-

FENSE UNDER THE SIXTH AND

AMENDMENTS TO THE CONST'TU-

TION OF THE UNITED STATES AND

ARTICLE I, § § 9, 16 OF THE

CONSTITUTION OF THE STATE OF

FLORIDA,

In the case at bar, the trial court

excluded the testimony of the only de-

fense witness, and thereby denied the de-

fendant minimum fundamental due process

as guaranteed by the Constitution of the

A147

State of Florida, Article I, § 9! and

162 and the Constitution of the United

States, Amendments vI3 and ¥IV4-

The exclusion of this critical

witness, the only witness on behalf of

the defendant, denied the defendant his

right to present a deferse. The United

States Supreme Court has expressed the

IPla. Const., Art. I § 9 provides in

pertinent art: "No person shall be de-

prived of life, liberty or property

without due process of law. ...

2Fla. Const., Article I § 16 provides

in pertinent part: "In all criminal

prosecutions the accused shall. . . have

the right to have compulsory process for

witnesses. ...

3U.S. Const. Amend. VI provides in

pertinent part: "In all criminal pro-

secutions, the accused shall enjoy right

. . « « to have compulsory process for

obtaining witnesses in his favor. . ."

4See, Duncan v. Louisana, 391 U.S. 145

(1968) and Pointer v. Texas, 380 U.S. 40

(1965) which apply pertinent portions of

the Sixth Amendment to the States through

the Fourteenth Amendment,

A148

following principle of law regarding the

right to present a defense:

The right to offer the testi-

mony of witnesses, and to

compel their attendance, if

necessary, is in plain terms

the right to present the de-

fendant's version of the

facts as well as the prosecu-

tion's to a jury so it may

decide where the truth lies.

Just as an accused has the

right to confront the prose-

cution's witnesses for the

purpose of challenging their

testimony, he has the right

to present his own witness to

establish a defense. This

right is a fundamental ele-

ment of due process of law.

Washington v. Texas, 388 U.S.

The trial court's ground for exclu-

sion of testimony in the case at bar was

that this witness' testimony was irrele-

vant. (R. 9) Relevant evidence is de-

fined as “evidence which proves or tends

to prove any fact material to the issues

in the case before the court." Drayton

ayton

A149

v. State, 292 So.2d 395, 396 (Fla. 3d

D.C.A. 1974), cert. denied 390 So.2d 900

(Fla. 1974). The term “relevancy” de-

scribes evidence that has "a legitimate

tendency to prove or disprove a given

proposition that is material as shown by

the pleadings.” Zabner v. Howard

Johnson's Incorporated of Florida, 227

So.2d 543, 545 (Fla. 4th D.C.A. 1969).

The cornerstone of relevancy is

logic and reason. See Gard, Florida Evi-

dence § 82 (1967). As was stated in

Watkins v. State, 121 Fla. 58, 163 So.

292, 293 (1935):

In civil as well as in

criminal cases, facts which

on principles of sound logic

tend to sustain or impeach a

pertinent hypothesis of an

issue are deemed relevant and

admitted in evidence. ..

Prior to the court's ruling in the

A150

case at bar, the defense counsel prof-

fered to the Court the nature of the wit-

ness' testimony. (R. 4-6) The witness,

Mr. lewis, was the victim of robbery that

occurred approximately one month prior to

the charged offense. (R. 4-5) Both rob-

beries were committed with the same modus

operandi: both victims were driving

taxicabs for the Diamond Cab Company at

the time of the robberies; both drivers

had picked up the robber as a passenger

at the Veteran's Administration Hospital

pursuant to a radio call; both drivers

were directed to go to the same location,

which, upon arrival, was discovered to be

a vacant lot; both drivers were threat-

ened by the robber with a knife. (R.

4-5), ™n addition, both victims gave

the police the same description of the

passenger. (R. 4-5)

A151

Mr. Lewis, the first victim, identi-

fied the defendant as the robber after

being shown photographs. (R. 5) He was

subsequently unable to identify the de-

fendant in a live line-up.

The defendant argued that this mis-

identification of the defendant by the

first witness was highly relevant to the

identification of the defendant in the

charged crime and, since it tended to

exculpate the defendant it should be

admitted. (R. 5-6)

Williams v. State, 110 So.2d 654

(Fla. 1959) is the leading case regarding

the admissibility of evidence of similar

crimes. The Court in Williams, supra,

held the following:

Our initial premise is the

general canon of evidence

A152

that any fact relevant to

prove a fact in issue is ad-

missible into evidence unless

its admissibility is pre-

cluded by some specific rule

of exclusion.

* * *

- « « evidence revealing

other crimes is admissible if

it casts light upon the

character of the act under

investigation by showing mo-

tive, intent, absence of mis-

take, common scheme, identity

or a system or general pat-

tern of criminality so that

the evidence of the prior

offenses would have a rele-

vant or a material bearing on

some essential aspect of the

offense being tried.

Williams v. State, 119 So.2d

at 658, 662.

In the case sub judice, the prof-

fered evidence clearly shows a common

scheme or general pattern or criminality.

It is likely that the same person com-

mitted both crimes. Therefore proof that

the defendant was misidentified as the

A153

perpetrator of the first crime would be

relevant to disprove the accuracy of the

identification of the defendant as the

perpetrator of the crime charged at the

case at bar.

Although in Williams, the evidence

of a collateral crime was admitted by the

prosecution to establish the identify of

the defendant, the defendant must be ac-

corded the same right to introduce evi-

dence in support of his defense of mis-

identification. This conclusion is man-

dated by the underlying theory of admis-

sibility propounded by the Supreme Court

of Florida in Williams, supra. Prior to

Williams, evidence of similar crimes was

excluded, unless it fell within certain

excepted "admissible" categories. Now

the rule is one of inclusion unless the

A154

admission of the evidence is precluded by

a specific rule of exclusion.

Furthermore, one of the major

recognized dangers of admitting such

evidence -- i.e., unfair prejudice to the

defendant by showing bad character or

criminal propensities -- is clearly not

present in the case at bar. In addition,

there is no unfair prejudice to the pro-

secution in the case at bar since this

witness appeared on the prosecution's own

witness list. ‘R. 8)

In recognition of the priniciple

that the Williams rule should be liber-

ally applied, the Second District Court

of Appeal extended this rule beyond its

original scope in Holley v. State, 328

So.2d 224 (Fla. 2d D.C.A. 1976). In that

case, the Court held that:

A155

If the Williams Rule testi-

mony is relevant enough to be

permitted, competent evidence

tending to disprove the

Williams Rule testimony is

equally important. Holley v.

State, 328 So.2d at 226.

Thus, the right of the defendant to in-

troduce all evidence in support of his

defense is well recognized. Brown v.

State, 229 So.2d 37 (Fla. 4th D.C.A.

1974)- Saviano v. State, 287 So.2d 102

(Fla. 3d D.C.A. 1973).

In the case at bar, the defense was

simply that the defendant did not commit

the crime; that the victim misidentified

the defendant. This same defense was

asserted in Corley v. State, 335 So.2d

849 (Fla. 2d Dist. 1976) There, the

defendant sought to introduce evidence

that the only identifiable fingerprints

on a vodka bottle found on the couch near

A156

the murder victims body were those of an

unidentified third person. The Second

Nistrict Court of Appeal held that the

refusal of the trial court to admit this

evidence was reversible error.)

The defendant in Corley, supra, had

the right to present evidence suggesting

that another person committed the crime.

The evidence in the case at bar, should

likewise be admitted since this evidence,

like the evidence in Corley, tends to

establish the misidentification of the

defendant as the perpetrator of the

crime.

Although the precise issue in the

SIn support of this holding, the Court

relied upon Commonwealth v. Loomis, 770

Pa. 254, 113 A. 428 (Pa. 1921); and State

v. Cooper 2 N.J. 540, 67 A. 2d 298

(W.J. 1949).

A157

case at bar has never been decided by the

Florida court system, an almost identical

case was decided by the United States

Court of Appeals for the Fifth Circuit.

In Holt v. United States, 342 F.2d 163

(5th Cir. 1965), the defendant sought to

introduce evidence showing that another

person had mistakenly identified the de-

fendant as the perpetrator of an almost

identical crime. The Fifth Circuit Court

of Appeals held that the exclusion of

this evidence was reversible error:

[A] defendant on trial for

the commission of a crime, in

A158

order to negative his guilt,

may show that other crimes of

a similar nature have been

committed at or about the

same time by some person

other than himself. Holt v.

United States, 342 F.2d at

T65 at 165-166.

This same result has been reached

by the three state supreme courts that

have considered that issue. In State v.

Bock, 229 Minn. 449, 39 N.W. 2d 887

(Minn. 1949), the defendant was charged

with the forgery of a check. At trial,

he sought (unsuccessfully) to introduce

evidence that other checks had been

forged in the same manner and at about

the same time by somebody other than

himself. The Supreme Court of Minnesota

held that the exclusion of this evidence

was reversible error:

Where the state has intro-

duced evidence of other

A159

crimes to establish identity,

the defendant is entitled to

rebut the inference that

might be drawn therefrom by

showing that the crimes have

been committed by someone

else....He should also have

the right to show that crimes

of a similar nature have been

committed by some other per-

son when the acts of such

Other person are so closely

connected in point of time

and method of operation as to

cast doubt upon the identifi-

cation of defendant as the

person who committed the

crime charged against him.

39 N.W. 2d at 892 (citations

omitted),

Similarly, in Commonwealth v.

Murphy, 282 Mass. 593, 185 N.E. 486

(Mass. 1933), the Supreme Court of

Massachusetts held that it was re

versible error to exclude the defen-

dant's proffered evidence that three

other crimes, perpetrated with the same

modus operandi, had been committed by

Al60

someone other than himself. In one of

these three crimes, as in the case at

bar, the victim had previously misiden-

tified the defendant as the perpetrator

of the crime.

The Supreme Court of Alabama also

approved this policy in Green v. State,

258 Ala. 471, 64 So.2d 84 (Ala. 1953),

wherein it stated:

In order to rebut the circum-

stantial evidence against

him, the defendant had a

right to introduce any legal

evidence tending to show that

some one else may have been

guilty in exoneration of

himself. 64 So.2d at 88.

Therefore, in the case at bar, this

Court should follow the holdings of the

Fifth Circuit Court of Appeal in Holt v.

United States, supra; the Supreme Court

of Minnesota in State v. Bock, supra; the

Supreme Court of Massachusetts in

A161

Commonwealth v. Murphy, supra; and the

Supreme Court of Alabama in Green v.

State, supra; and the policy favoring the

admissibility of all relevant evidence

enunciated in Williams, supra; Holley,

supra; Brown, supra; Saviano, supra, and

Corley, supra, and hold that the exclu-

sion of the relevant evidence proffered

by the defendant denied the defendant his

right to present a defense and therefore

constituted reversible error.

A162

THE TRIAL COURT ERRED IN

ALLOWING PROSECUTORIAL COM-

MENTS REGARDING THE INVESTI-

GATING OFFICERS' ENCOUNTERS

WITH AN "NIDENTIFIED THIRD

PERSON TO PERVADE THE ENTIRE

TRIAL, WHERE THE ONLY PURPOSE

OF THIS ARGUMENT WAS TO LEAD

THE JURY TO DRAW THE IMPER-

MISSIBLE INFERENCE THAT THIS

THIRD PERSON HAD IDENTIFIED

THE DEFENDANT AS THE PERPE-

TRATOR OF THE CHARGED CRIME,

BI'T WAS AFRAID TO TESTIFY IN

COURT.

Throughout the entire trial, the

prosecution referred to the assistance

given to the investigating officers by an

unidentified young black male. (R. 23,

41, 84, 87-88, 95, 100, 101, 166,

169-179).

The nature and significance of this

testimony was succinctly summarized by

the prosecution in its closing argument:

Al63

Detective Purdy had some

testimony which you should

consider because you should

consider all the circum-

stances in this case; every-

thing involving this case.

Detective Purdy said he was

on the scene, and he was

looking for evidence.

Now, a young black male

rode by. A young black male

stopped and then later he saw

the young black male put a

piece of paper in the detec-

tive's car. ‘f£ you are to

consider all the circunm-

stances in this case, that is

significant.

Then you heard Detective

Shipes. Detective Shipes is

an experienced police offi-

cer; detective; a profession-

al. He went to the scene.

He talked to the uniformed

officers. He went to the

hospital to try to talk to

the victin.

later, when he got in the

car, he found this piece o

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