Appendix — Bennett v. Stump

.

_ APPENDIX A Ki) on a

IN THE UNITED STATES DISTRICT COURT ton: THE

SOUTHERN DISTRICT OF IOWA EASTERN,

DIVISION

- RONALD MAURICE STUMP, . )

Petitioner, ;

VS. *

JOHN BENNETT, Warden, Iowa > Civil No. 2-391-E

State Penitentiary, Fort Madison, 7 “‘‘.

Iowa,

' \ Respondent. ;

MEMORANDUM AND ORDER

(Filed October 26, 1965, F. E. Van Alstine, Clerk, U. S, Dis-

"= tpt Court, Southern District of Iowa.)

~ ‘Thig\natter is now before the Court upon the petition:

' Of Ronald Maurice Stump, hereinafter referred to as peti-

tioner, for a writ of habeas corpus. Petitioner was con-

victed of the crime of murder in the second degree in the

District Court of Iowa, in and for Polk County. Judgment:

was entered on December 11,. 1961, sentencing him to.

' seventy-five years confinement at the Iowa State Peniten-

tiary, Fort Madison, Iowa, where he is now confined. This

judgment was appealed to the Supreme Court of Iowa,

which affirmed the conviction on J anuary 15, 1963. State

v. Stump, 254 Iowa 1181, 119 N.W.2d 210 (1963).

: . Petitioner contends that’ he is illegally imprisoned be-

cause he was deprived of certain rights guaranteed by the

_ Constitution of the United States.. A:nong other things he

contends that. he was not advised of his rights to see coun-

sel and of his right to r remain silent. and that testimony

of police officers as to conversations alleged to have oc-

curred between them and petitioner was erroneously ad-__ .

mitted in the trial of his cause. Respondent for response

to this contention urges the Court to deny the petition on .

the basis that the petitioner has failed to exhaust ote avail-

- able state remedies.

After a hearing on the a issue, as well as s other

_ matters urged by petitioner, the Court finds.that petitioner

has available to him i in the State Court the post-conviction

~ remedy of habeas corpus with which to assert the issue re-

garding’ denial of counsel. It is true this ‘question was

considered by the State Supreme Court in State v. Stump,

supra, but this was prior to the ruling of the Supreme Court _

of the United States in Escobedo Vv. Illinois, 378 U.S. 478

(1964). Since petitioner has failed to raise this ‘issue by

, petition for habeas corpus in the state courts, he has failed

to exhaust the semedies available to him in the courts of

the state, as réquired by law, before seeking relief in this

court. Title 28 U.S.C. § 2254. See Blair v. People: of State

of California, 340 F.2d 741 (9th Cir. 1965); Tomlin v. Beto,

- 241 F. Supp. 390 (S.D. Texas 1965). |

Further proceedings in this court will be held in abey-

ance for a period of three months to permit petitioner to

apply to the state courts for appropriate post-conviction —

relief on the foregoing issue. If petitioner fails to seek; ©

such relief this ground will be dismissed and the court will.

act on other grounds: presentgg, - G |

Dated this 26th day of Citcber, 1965.

/s/ Roy L. iidaiiinees:

' Chief Judge - -

We ie

IN THE UNITED STATES DISTRICT COURT FOR THE

__ SOUTHERN DISTRICT OF IOWA EASTERN

ss DIVISION. a

RONALD MAURICE STUMP, } ee

ae | Petitioner, Bits: ye

JOHN BENNETT, Warden, towa fr Civil No. 2-381:5

State Penitentiary, Fort - ‘Madison, ; ,

Iowa,

Respondent

ORDER —

(Filed April 26, 1967. F. E. Van Alstine, Clerk, U. S: Dis-

i trict Court, Southern District of Iowa.)

‘ This matter is now. before the Court upon the petition

of Ronald Maurice Stump for a writ of habeas cotpus, The +

petition was filed on July 28, 1965.

After conducting a hearing ‘on October 14, 1965, the

Court found that further proceedings on the matter should —

be held iniabeyence for three months so that thé petitioner.

could apply to the state courts for relief on one of the issues »

Taised in his petition which had not been previously pre-

sented to the state courts. Time extensions for presenting

the matter to the state courts were subsequently granted. _

‘On June 21, 1966, petitioner filed a habeas corpus petition

in the District Court of the State of Iowa in and for Lee’

;. County. The petition was. denied on September 21, 1966.

This decision was not appealed to the Supreme Court of

Iowa. On March 21, 1967, the petitioner, ‘at the request of ©

_ the’ Court, furnished a report wherein he indicated that he

“had no intentiori of appealing the state district court de-

cision and that the time for appeal had expired. Petitioner .

attributes his failure to appeal to a lack of. funds. . Con- —

“sidering the elapse of time since petitioner originally filed

Td

his. petition i in this Court, the efforts of vetilicndé to present

3 one of his contentions to the state court in accordance with

- a previous order of this Court and the rendering by the

‘Supreme Court of the United States a decision which ef-

- fectively. disposes of that. contention;-it is the view of this

: Court that petitioner has exhausted his state remedies pur-

a t to the provisions of 28 U.S.C. § 2254 and that his

/petition should ‘now be-considered on the merits of th&on-

tentions raised therein.

- Petitioner was convicted by a jury of murder in the

second degree i in the District Court of Iowa, in and for Polk

County. Judgment was entered on December 11, 1961,

sentencing petitioner to seventy-five years confinement at.

_the Iowa State Penitentiary, Fort Madison, Iowa. The con-

_. viction was appealed to the Supreme Court of Iowa and

~ was. affirmed on January 15, 1963. State v. Stump, 254

Iowa 1181, 119 N.W.2d 210 (1963). Petitioner is presently —

serving his sentence at the Iowa State Penitentiary. _

__. Petitioner contends that he is illegally imprisoned be-

- cause he was deprived of certain rights guaranteed by the. .

Constitution of the United ‘States; those being -(1) that

Certain incriminating statements. allegedly made by him

while he was in custody and without aid of counsel were

~ introduced at his trial; (2); that he was deprived of his

_ right to a presumption of innocence by the trial court’s

- Instruction No.'14, and (3) he was.forced to comply with

Section,-777.18 of the lowa Code which is an unconstitu-

tional statute. -

| Petitioner urges that he was deprived of: federal con-

stitutional rights guaranteed by the fifth, sixth and four-_

teenth. amendments to the Constitution when certain in-

criminating statements allegediy made by. him to police

officers while he was in custody and without counsel were

admitted into. evidence at: his trial. In ‘supporting. his .

contention that the introduction of the’ invoclbedinsiticns state." 3

ments violated his constitutional” rights, petitioner™ reliés

heavily upon the case of Escobedo v. Illimois, 378 US.

478 (1964). However, the pringiples of that case .and

the interpretation thereof -contained in the more récent

case of Miranda v. Arizona, 384 U.S. -436 (1966) . are, not

_applicable in this instance .under the Supreme Court’s

ruling in Johnson. v. New Jersey, 384 U.S. 719, wherein

it was stated. that “because Escobedo is» to be applied

prospectively, this holding is available ( to persons |

whose trials began after June 22, 1964, the date’on which ~

Escobedo was decided.” Supra at 734. Petitioner’s trial

was completed in 1961 and the conviction was affirmed

-, in 1963. Escobedo’s principles are therefore not applicable Pi

to petitioner’s trial: The sole test of whether the state-

ments forming one of the bases for the petition now be-

fore-the Court were admissible at the peucioner’s trial is |

whether they were voluntary. Stein v. New York, 346

U.S. 156 (1953); State v. Beltz, 225 Iowa 155, 279 N.W.

386 (1938). After reviewing the evidence presented in

the -hearing concerning petitioner’ s application for a writ

_of habeas corpus herein, the Court is convinced that there

is ample. evidence supporting: ‘the state court’s determina-

tion that the allegedly incriminatory statements at-

tributed to petitioner were voluntary and, in. accordance

_ with constitutional standards then in existence, admissible

as evidence at petitioner’s trial.

- Petitioner’ S second contention is premised upon a jury . .

‘instruction given at his trial. It is claimed that the in-.—

‘struction concerning petitioner’s alibi defense deprived |

him of his. right to be presumed innocent until proven

guilty and thus denied him the due process of law guax- -

' anteed by the. fourteenth amendment to the constitution.

The instruction providing the. — for petitioner's con-

‘. tention is. as follows: :

| "eee

{It is the claim of the defendant that at the time

‘of the shooting of Michael Daly referred to herein he

was on the highway between Des Moines and Knox-

. ville, Iowa, and eonsequently that he could not have

’ ‘committed the offense Charged herein or either of the

‘.. included offenses. He seeks to establish this claim

- by a witness or witnesses: who- have testified herein

and also by his own testimony. . —_ defense is com-

monly known as an alibi. ;

The defendant has’ the burden of establishing

this defense by the greater weight of the evidence’

-bearing upon it, and before you can acquit the defend-

°- ant’ by reason of this defense’ you must find that he ©

-. has established it by a preponderance or greater

weight of the evidence bearing upon it. If he has es-

tablished by the greater weight of the evidence that

he was on the highway Letween:Des Moines and Knox-

ee ville, Iowa, at such a distance from Des Moines’ that he

could not have. committed. the crime ee nerein,

you should return a verdict of not guilty. | ase

If the°defendant ‘has failed to sitaiitieh this de-

fense by a greater weight of the evidence you should:

‘still consider the evidence which has been introduced —

_- in support thereof, and 4, after considering the case

as made as a whole, including this evidence, you en- ;

oe . tertain a reasonable doubt as to his having committed |

_ the offense’ charged or either of the included offenses.

herein, you’ should return a verdict —s he de-

: fendant not guilty. :

You will understand that the arden of. paeey re-.

* ferred to. in this paragraph rests upon the defendant

_.. only as to the proof that he was on the highway be- . ~

tween Des Moines “and. Knoxville, Iowa, at the time

the shooting occurred and at- suich’a distance from.

- Des Moines that he could not have been the person:

who did the shooting. ‘By reason of this burden rest-

‘ing upon him, he isnot bound or required to prove:

-".his innocence as to the whole case, for the burden of

v\ a ;

i e

praof résts upon the State as to the case as a whole

to ‘prove the defendant = beyond a reasonable — -

doubt before a ‘verdict of y on any of the charges

_ included herein can be ‘Yeturned against him.”

“This instruction places ‘the sitll of, proving an alibi

by the gréater weight of the evidence upon the defendant. ‘ '

The threshold question now before the Court is whether

such an instruction is inconsistent “with other i ctions

to the effect that the state must prove all elements

. of the crime charged beyond a-reasonable doubt and, if

it is inconsistent, does such an inconsistency deprive a de-

fendant of due process of law. It appears to the Court. .

that, to some extent, some degree of confusion is created

when the “alibi” instruction placing the burden of proof

by a greater weight of the evidence n the defendant is

given in conjunction with the other’ instructions ‘which

place the burden upon the state to prove the defendant’s

guilt, as to each essential element of the crime beyond a.

reason le doubt. An attempt to reconcile the varying

’

burden of proof as to the alibi instruction is made‘when ~ ”

the jury is instructed that -even if an alibi is not estab-—

‘lished by a greater weight of the evidence, the evidence

introduced for establishing an alibi must be considered in.

determining ‘whether, on the case as a whole, there is a |

‘reasonable doubt as to the guilt of the, defendant. .Al--

though this aids in clarifying the instruction$ as a whole

_ and in placing the government’s burden. as to the defend-

. ant’s guilt in its proper perspective, the instruction, while

niet inconsistent, is still somewhat confusing. To be viola- - ¢

tive of the due process clause of the fourteen amendment,

_ however, the instruction complairied of by. the petitioner

herein must be such as would constitute a failure “to ob-

‘serve that fundamental fairness essential to the very con-

cept of justice.” Lisenba v. California, 319 U.S. 219, 236

(1941). While the jury: instructions in the petitioner’s |

ee

~trial contained an evident disfinction in the burden and

quantum of proof required for establishing an alibi and for

proving the guilt of the defendant, it is the view of this

Court that the distinction is not -violative of the due process

clause. See Leland v. Oregon, 343 U.S. 790 (1952). Al-

though the instruction involved herein may not be a model

of clarity, it is not violative of the due process clause of

the fourteenth amendment to the Constitution.

__ It should further be noted parenthetically that, even —

if it were determined that the alibi instruction was uncon-

stitutional, there is serious doubt as to whether such a de-

cision should be applied retrospectively. Sinte there is no

. need to explore in depth the problem of retroactivity as it

applies to the constitutional problem now before the Court,

_ suffice it to comment that under the teachings of Link-

letter v. Walker, 381.U.S. 618 (1965), Tehan v. United

States, 382 U.S. 406 (1966) and Johnson-v. New Jersey,

384 U.S. 719 (1966), it is doubtful that a decision holding:

the alibi instruction involved herein to be unconstitutional

‘should be given retroactive effect.

Petitioner’s final contention is that § 777.18 of the aaae

Code is unconstitutional: The statute provides as follows: .

. . Where the defendant pleads not guilty and pro-

poses to show insanity as a defense, or that he relies

on an alibi or that he was at some other place at the

time of the alleged commission of the offense charged,

he shall, at the time he pleads or at any time there-

after, not later than four days before trial, file a writ-

ten notice of this purpose, setting: forth. the namés of

the witnesses, together“With the address and occupa-

tion: of each, and a statement of the substance of that

which the defendant expects to prove by the testi-

mony ofeach of said witnesses. If the defendant files

said notice less than four days before the case is set.

A9

5 ie Teen oS. eer a

for trial, the state, on motion of the county attorney,

_ Shall be entitled to a continuance of said cause for- not

to exceed four days.

The Court finds no constitutional violation of this stat-

ute. The statute merely attempts to give the prosecution

an opportunity to investigate adequately the easily manu--

- factured alibi defense. It is interesting to note that. the

‘prosecution is required to furnish the defendant with sim-

ilar information as it pertains to evidence in support of the

indictment under § 780.10 of the Iowa Code. There is no

merit to petitioner’s final contention. ;

IT IS ORDERED that the petition of Ronald Maurice

Stump for a writ of habeas corpus be and is hereby denied.

Dated this 26th day of April, 1967.

: /s/ Roy L. Stephenson

+: Chief Judge

_

A10

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

}

j

No. 18,920»

4 =

—— arse P Appellant, | Appeal from the

: " ‘United States Dis-

hes x + trict Court for the

John Bennett, Warden, Iowa State Southern « District

ea as Fort Madison, Iowa, _ of Iowa..

Appellee. J

.

(June 21, 1968. |

Before Van petites Chief Judge, Vocet, Senior Circuit

. Judge,* and MaTTHEs, BLackmMun, Menarry, Grgson, Lay, -

and Heaney, Circuit Judges. ; tag

Lay, Circuit Judge. : | a

. Ronald Maurice Stump, a state prisoner, appeals from

the denial of his petition for a writ-of habeas corpus in

federal district court. Stump was convicted of murder in

the second degree in the Polk County, Iowa, District Court .

in the slaying of one Michael Daly. On December 11,

1961, he was sentenced to a term of seventy-fiye*years’ — |

imprisonment. Stump asserted as a sole defefise at his ;

trial that it was impossible for him°to have beeri present

*Judge Vogel sat on the original three-judge panel which

we After oral argument the submission was va-

cated and set for hearing before the court en banc. _

All

at the place of thé crime_since he was driving on

highway between Des Moines and -Knoxville when

.- Shéoting.took place: He offered witnesses in an attempt ~

_ to verify this fact. The state trial court placed upon the

defendant the burden of proving his alibi by a preponder-

. ance of the evidence. The conviction was affirmed by the

‘Iowa Supreme Court i in State v. Stump, 254 Iowa 1181, 119

N.W.2d 210 (1963) (the vote of the Iowa court was 5 to 3,

with one judge not participating), cert. denied 375 U.S. 853

(1963). ;

‘After exhausting ‘his state ; semedies,! Stump peti-

tioned for a writ of habeas corpus in the United. States

District Court for the Southern District of Iowa, alleging =

among other grounds that the state trial ‘court’s‘instruc- .

‘tions placed upon the defendant the burden of proving his

sole defense of alibi by the preponderance of the evidence,

and that Iowa Code Ann. §777.18 requires a defendant

raising. an alibi defense to give to the state timely notice

of such defense, as well as the names and addresses of

any corroborating witnesses, without a reciprocal exchange

of the state’s witnesses relating to the same issue. “Pe-

titioner claims, as he did below, that both grounds con- °

stitute a denial of due process of law under the Fourteenth

Amendment. We need not discuss the other grounds raised

on this appeal. We hold that the Iowa rule shifting the

» burden of if proof to the defendant reached the level of con- —

1. Stem originally filed his — for federal habeas |

corpus on July 28, 1965. After a hearing, the court directed.

him to seek further postconviction. relief in the staté courts re-

garding his claim under Escobedo v. Illinois, 378 U.S. 478 (1964),

reserving jurisdiction, however, to pass on the petition after state

remedies were exhausted. Stump then = to the state

tourt and petitioned for habeas corpus. was denied, be-

cause by then the United States Supreme Court had stated in

Johnson v. New Jersey, 384 U.S. 719, 733-35 (1966), that the

principles of Escobedo were not to be applied”

‘The federal court then was asked to find petitioner’s state

remedies exhausted and rule on the petition pending before it.

' On April. 26, 1967, the writ was denied.

Al2 |.

stitutional error and was prohibited by: the Fourteenth

Amendment. We reverse and remand with directions.

The due process clause permits a state a wide berth

in developing rules of procedure and evidence. Spencer.v. — |

Texas, 385 U.S. 554 (1967). A constitutional violation can-

not rest upon our independent judgment or personal ap-— | |

praisal of what seems the fairer or the better. procedure.

See Leland v. Oregon, 343 U.S. 790,'799 (1952). The funda-

mental bases of “due process” relate to adequate notice

_ and reasonable opportunity to be heard. Hovey v. Elliott, —

167 U.S. 409, 413-18 (1897). Beyond these minimal stand-

ards only oppressive and arbitrary state procedural rules

command federal review. Federal intervention is justified

only when the state law “offends some principle of justice

so rooted in the traditions and conscience of our people

as to-be ranked as fundamental,” Snyder v. Massachusetts,

291 U.S. 97, 105 (1934), or frustrates a right “implicit

in the concept of orderéd liberty,” Palko v. Connecticut,

302 U.S. 319, 325 (1937).

‘We thus reflect cautiously upon the rule before us. ‘we

is one of only two states? which now. require a defendant

to assume the burden of persuasion. by a preponderance .

of evidence in establishing an alibi. Six other states have

_ permitted instructions which require a defendant to pre-

~~ sent sufficient evidence of alibi to establish in the minds

ef the jurors a reasonable doubt of ‘his guilt, but these

2. Georgia’s rule is similar though not identical to Iowa’s.

, In Porter v. State, 36 S.E.2d 794 (Ga.Sup.Ct. 1946), the current

test was set out: “The burden is on the accused to sustain his

defense of alibi to the reasonable satisfaction of the jury in

order to overcome proof of his guilt of the crime with which ‘>

he is charged.”: ‘However, in a 1964 Georgia Court of Appeals

Hale v. State, 138 S.E.2d 113 (1964), a trial court’s in-

' struction that defendant must prove his alibi “by a preponder-

ance of the evidence and to the reasonable -satisfaction of the

jury... ..” (emphasis, ours) was held nonprejudicial if erroneous.

The court said that “preponderance of the evidence” did. not

prejudicially increase the permissible quantum set out: in Porter,

supra.

Oe

Al3 3

states do not at any time shift the hones: of. persuasion :

as is done under the Iowa rule. Analytically, these states

simply shift to the defendant the burden of going forward _....

with the evidence as to’ the alibi itself. -All of the seven

~ “United States Courts of Appeals that have considered the

_ issue, including this Circuit, agree that in a federal prose-

cution the burden of persuasion of an alibi defense may

_not be shifted to the defendant. United States v. Vigorito,

67 F.2d 329, 330 (2 Cir. 1933) (dictum); United States v.

Marcus, 166 F.2d 497, 503-4 (3 Cir. 1948); Falgout v.

United States, 279 F. 513, 515 (5 Cir. 1922); Cangelosi v.

United States, 19 F.2d 923 (6 Cir. 1927); Glover v. United

States, 147 F. 426, 430-33 (8 Cir. 1906); Thomas v. United

( States, 213 F.2d 30, 32-34 (9 Cir. 1954); Reavis v. United

‘States, 93 F.2d 307, 308 (10 Cir..1937). And even the Iowa

Supreme Court subsequent to the Stump case‘ expressed

-_. %. The states are Idaho, State v- Vanek, 84 P.2d 567 (Idaho

Sup.Ct. 1938); West Virginia, State v. Withrow, 96 S.E.2d 913

(W.Va.Sup.Ct. 1957); Ar , Sangston v. State, 172 Ark.

1177, 289.S.W.2d 478 (1927) and Morris v. State, 145 Ark. 241,

224 S.W. 724 (1920); Montana, State v. Wilson, 76.Mont. 384, 247 P.

158 (1926); California, In re Corey, 41 Cal.Rptr. 379, 388

(D.Ct.App. 1964); and Texas, Anderson v. State, 181 S.W.2d

78 (Tex.Ct.Crim.App. +1944) (dictum).

, 4. The Iowa Supreme Court itself has a history of division

on this issue. See e.g., Chief Justice Adams’ dissent in State

‘ . V. Hamilton, 11 N.W. 5,.6-7 (Iowa 1881); State v. Rivers, 27

N.W.. 781, 784 (1886). In a vigorous dissenting opinion in ‘State

v. Stump, supra at 225, Mr. Justice Thornton points ‘out the il-

logicality of the alibi rule: - : :

“Where, as here, it is necessary for the state to prove the

defendant present to commit the crime, the evidence for the

State is, the defendant was present at the time and place’ in

question. Defendant’s’ evidence of alibi is simply that he

was not at the place in question but at another. place, nam-

ing it, too remote for him to have been at the site of the

crime. Defendant’s evidence is purely defensive. The fact.

to be proved by the state. is, defendant was there, any evi-

dence that shows he was not there negates that evidence.

- . . When the opinion (and the instruction in the case at

bar) states the non presence of the defendant will not be

- presumed the. presumption of: innocence - has’ been denied

him, and the state has been relieved of proving its case

beyond a reasonable doubt.”

Al4

doubt about future inalieiiiiidace of the rule, Shite Vv. Post,

123°N.W.2d 11, 18 (Iowa 1963). But neither polling other

. States’ positions . nor comparing Iowa law with federal

_ procedure is a conclusive ground for a finding on consti-

tutional infirmity. ‘Such weight of authority guides us a '

most:to a “consideration” of- whether the rule “offen |

principles so fundamental as to be within ‘Genstitutional | |

> protection. Leland v. Oregon, 343 U.S. at 798; cf. Gideon _

v. Wainwright, 372. US. 335,- 342 (1963). We analyze the i:

problem in three parts: 3 |

I. Is the instruction patently erroneous? —

II. Does it violate due process?

IiI. And if so, considering the instructions as a ens

is it “harmless” constitutional error beyond “a reasonable .

doubt”? Chapman v. California, 386 U.S. 18, 24 (1967).

| he”

- The Towa trial court ifytructed the jury, in part, 2

follows: .

bette’ ‘you can acquit the aiteadiik. by reason

ee this defense [alibi] you must find that he has es-

--- tablished it by a preponderance or greater weight of

' the evidence bearing upon it.”® (Emphasis ours.)

is ie The full instruction reads:

' “Tt is the claim of the defendant that at the time of the

shooting of Michaél Daly referred to herein he was on: the

‘ eonsequently that he could not have committed the offense

charged herein-or either of the included offenses. He- seeks

_ to establish this claim by a witness or witnesses who have

‘- - testified herein and also by “his own testimony. This de-

_ -fense is commonly known as an alibi. :

“The defendant has the burden of establishing this de-

“ fense’ by the greater weight of the evidence bearing upon it,

and before you can acquit the defendant by reason of this

. defense you must find that he has established it by a pre-

' ponderance or greater weight of the evidence bearing upon

it. If he has established by, the ‘greater “— of the evi- ._.

{

t

oa

_ There exist many bases for considering the instruction er-

roneous.

(a) The original ae behind placing the tained

of proof upon the defendant is that “alibi” is an affirmative

defense. See State v. Vincent, 24 Iowa 570 (1868); State

v. Stump, supra at 218. This view. has now been rejected -

_-s, by almost every state as well as-by all federal courts which

“ have had the proposition before | them:. See, e.g.,’Halko v.

State, 175 Ad 42, 48-49 (Del.Sup.Ct. 1961); Common- ”

wealth v. Bonomo, 151 A.2d 441, 444-46 (Pa.Sup.Ct. 1959);

State v. Garvin,.208 A.2d 402 (N.J.Sup.Ct. 1965); State v.

_ Hubbard, 171 S.W.2d 701, 706-9 :(Mo.Sup.Ct. 1943). In as-

serting alibi the defeniiant simply deniés the possibility

of his having committed the crime by reason of being else-

where when it was committed, whereas ‘an affirmative de-

fense generally applies to justification for his admitted par-

‘ticipation in the act itself. See 9 Wigmore, Evidence §2512

. dence that he was on the highway between Des Moines and

Knoxville, Iowa, at such a: distance from Des Moines that

he could not have committed the crime charged herein, you :

should: return «a verdict of not guilty.

“If the defendant has" failed to establish this defense

by a greater weight of the evidence you should still con-

sider the evidence which has been introduced in support

thereof, and if, after considering the case as made as a

whole, including this evidence, you entertain a reasonable

doubt .as to his -having committed the offense charged or

either of the included offenses herein, you should return a

verdict-finding the defendant not guilty.

“You will understand that. the burden of proof re-

ferred to in this paragraph rests upon the defendant only —

as to the proof that he was on the highway between Des

‘ Moines and Knoxville, Iowa, at the time the shooting oc-

curred and at such a distance from Des Moines ‘that he ©

could not have been the person who did the shooting. By

reason of this burden resting upon him, he is not bound or

required to prove his innocence as to the whole case, for

the burden of proof rests upon the State as to the case as a

whole to: prove the. defendant guilfy beyond a reasonable

doubt before a verdict of guilty on any. of the —— in-

cluded herein can be ‘returned against him.”

5

_ 2 Underhill, Criminal Evidence §441 (5th ed. 1956) ; Note,

oo

(3d ed. 1940); McCormick, Evidence §321 at 683 (1954);

49 Towa L. Rev. 590 (1964).

; (b) The instruction itself is inconsistent and confus- -

ing, as_is pointed out by the federal district court below.

.The jury is told that before it-can acquit the defendant by

‘reason of this defense the defendant must establish it by ©

the preponderance of évidence. Yet the jury is also told

that if any evidence creates a reasOnable doubt as to the

crime as a whele, then it can return a verdict of not guilty.

This court, of course, has consistently adhered ‘to the gen-

: eral rule that instructions are to be viewed in their entirety.

See, for example, Smith v. Wire Rope Corp. of America,. .

383 F.2d 186, 188 (8 Cir. 1967), and Jiffy Markets, Inc. v.

Vogel, 340 F.2d 495, 500 (8 Cir. 1965). But even when so

viewed, the presence of serious confusion here as to burden

“Of proof seems inescapable. If we presume, as. we must,

that the jury follows the court’s instructions, which in-’

‘struction i is the jury to follow? Has i

(c) Upon a plea of alibi, the lila of inno- ©

— . cence is permanently shattered as to the evidence relating

to (1) the presence of the defendant, (2) the time, and

3) .the place of the crime itself. In Glover v. United

- States, 147 F. at 431, this court. pointed out that proof of.

alibi is a denial of the essential | elements of the- crime.

' This court said:

| *“Included:i -in the indictment is the. | dias that the

_ defendant did then and there commit the assault.

Whereby the prosecution undertook'to show by evi-

dence that the defendant was present at the time and

place. On this issue thus tendered the burden rested

upon the prosecution. It never shifted. \So when

the defendant introduced evidence to show\that he |

was not ‘then and there’ present, he was but\rebut-

ting the proof offered by the. prosecution tendin g to

--~e—-——

e °

es.

*

A17

msintsin the allegation that he was. then ina dies.

The protection of any. reasonable doubt in favor of the

defendant applies in such instance as to any. other af-

: firmative issue tendered in the charge.” 7

(d) By shifting the burden of proof to a person ip

- Claims to have been elsewhere at the time of the crime, |

~ there is. created an irrational and’ arbitrary © presumption

of guilt. It arises not by reason. of a proof of fact from

which a fair inference might be drawn but from the mere

happening that the defendant offers testimony in an /at-

tempt to establish innocence. When this occurs, uriless

the defendant can succeed in .overbalancing - the state’s.

evidence, the jury is expressly told he.cannot be acquitted

by reason of, his sole claim to innocence. There is thus

es orehudemant of “a conclusion which the. jury should |

a.

&

_ reach of its own volition.... [This presumption would

conflict with the overriding presumption of innocence

‘with which the law endows. the aceused and ex-

tends to every element of the crime.... [I] ting

presumptions ar€™not to be improvised by the judjciary.”*

See Morissette v. United States, 342 U.S. 246, 275 (1952).

_ However, as previously observed, mere error or con-

fusion is not before us, unless we are convinced that it is

So oppressive as to offend the due process | clause. ed

resolve that question in the affirmative ot cs

There are. persuasive grounds to say that the denial

of the presumption of innocence of an accused is a.con- © -

‘nstitutional violation under the due process clause. In

“Cummings v. Missouri, 4 Wall. 277, 328 (1866), the Su- |

preme Court said:

“The clauses in question subvert the presumyptions * oe

innocence, and alter the rules of evidence, which here-

tofore, under the universally recognized principles ‘of

+

wate 7 a,

the common law, have been supposed to be funda- .

mental and unchangeable. They assume that the par-

ties are guilty;*they call upon the parties to establish

their innocence; and ihey declare that such innocence

can be shown only in one way—by. an inquisition, in

the form of an expulgatory oath, into the consciences

of the parties.” ‘: as

The early history of the presumption of innocence is de-

, s-tailed in Coffin v. United States, 156 U.S. 432, 453 (1895),

/ : where the Court said: ;

af ie principle that is a presumption of inno-

'/ eence in favor of the accused is the undoubted law, .

_-axiomatic an elementary, d its enforcement lies at

the foundation of the administration of our criminal

law. ” ; , \

In Morrison \ v. California, 291 U. S. 82 (1934), the Court

"held:

“In such circumstances the conviction of Morrison be-

cause he failed to assume the burden of-disproving

‘a conspiracy was a denial of due process that vitiates

the judgment as to him.” Id. at 93..: (Emphasis ours.)

ae

In Speiser v. Randall, 357 US. 513, 525-26. en the :

- Court said: -° *

“There is always in. litigation a margin of error,

representing error in factfinding, which both parties

must take into account. Where one party-has at stake

“an interest of transcending value—as a criminal de- .

- fendant his liberty—this margin of error is reduced ~

- as to him by the process of placing on the other party

the burden of producing a‘sufficiency of proof. in the

first instance, and ‘of persuading the factfinder at the

- conclusion of the trial of his guilt beyond a reason-

able doubt.: Due process. commands that no man shall

lose his liberty unless the Government -has borne the

burden of producing the evidence’ and —e ‘the

factfinder of his oe —— ours. )

' . gaid:

AIS

And Mr. J ustice Douglas, \in concurring, amr U. S, at 535,

pointed out: | |

“If one pirés to ove erthrow the Government, he

** commits: a fr To make him swear he is innocent

to avoid the me a a law is- to put on him

the burden of proving his innocence. That method —

does not square with our standards of procedural due

process; as the opinion of 4 Cours points out.” ene

phasis ours. ) 6

In Deutch v: United States, 367 U. S. 456, a (1961),

‘the Court said: | aw *

“In fulfiliment of Mieir obligation under this statute,

_ the courts must/accord to the defendants every right

which i is guaranteed to defendants in all other criminal -

cases’ [Watkins v. United States, 354 U.S. 178, 208

. (1957). ] ‘One of the rightful boasts of ‘Western. civili-

' gation is that the [prosecution] has the burden of

establishing guilt solely on the basis of evidence pro-

’ duced in court* and under circumstances assuring an

accused , the safeguards. of a fair procedure.’ Irvin

.

Among these is. the presumption of the defendant’s

innocence. Sinclair v. United States, 279 U:S., at 296- |.

297; Flaxer v. United States, 358 U:S., at 151.’ *Em- :

phasis ours.) ©

In Glover v. United States, 147 F. 426, 431,. this court

“The Se vice in. the foregoing cheie at

the court is in the assumption that in respect of the |

alibi the burden of proof ‘by a. preponderance of evi-

dence, that is, by the greater and superior evidence,’

shifted to the: defendant. It loses sight of the funda-

mental rule in criminal.procedure’ “that the defendant

is presumed to be. innocent of the offense with -which

366 U.S. 717, 729 (concurring opinion). . -

he is charged; that this is a continuing presumption -

' . which attends him like a guarding spirit throughout ~

~ the ordeal of his trial, and imposes upon the prosecu-

~ *

anole - — A990

_ tion the burden of overcoming such presumption by

€ such weight of evidence as will satisfy the minds of

_ the triers beyond a reasonable doubt of the defend-

ant’s guilt.” (Emphasis ours.)

See also Davis v. United States, 160 US. 469, 485-89 (1895).

_ The presumption of innocence in itself is no longer

' considered to function as evidence. See ‘Holt v. United.

States, 218 U.S, 245, 253 (1910); Agnew v. United States,

165 U.S. 36, 51-52 (1897); 9 Wigmore, Evidence §2511 at

409-12. Nor is it the precise equivalent of the burden of

proof. It simply serves to regulate the complete burden

of proof in a criminal trial, not only in going forward with

the evidence, but more importantly in placing the burden

/ pf persuasion itself on the government. |

- In Leland v. Oregon, 343 U.S. 790 (1952), the Supreme |

Court upheld the shifting of the burden of persuasion of a _

plea of insanity. urider- Oregon law. And the majority

evinien. points out that although the federal courts do not

condone shifting the burden of persuasion with regard to

_ insanity, nevertheless such a procedural rule does not in-

volve any constitutional right; thus Davis v. United States,

160 U.S. 469 (1895), was held not to be controlling.

Whether or not one interprets the treatment of Davis in

Leland as denying a constitutional status to the “presump-

tion of innocence,’ this much is clear: . when the burden

of persuasion is shifted to the defendant to disprove es-

sential elements.of a crime, as it was in the instant case,

then it is certain that the due process clause of the Four-

teenth Amendment has been violated. MeFarland v. Amer-

ican Sugar Refining Co., 241 U.S. 79, 86 (1916); Manley v.

- Georgia, 279 US. 1, 6 (1929); Morrison v. California, 291

_ US. 82 (1934); Morissette v. United States, 342 U.S. 246,

274-75 (1952); Speiser’v. Randall, 257 U.S. 513 (1958);

Deutch v. United States, 367 U.S. at 471; United States v.

A21

Romano, 382 U.S. 136 (1965); ‘Communist Party v. United !

States, 331 F.2d 607, 815 (D.C. Cir. 1964); Shaw v. United

States, 357 F.2d 949, 960 (U.S. Ct. of Claims 1966).

In McFarland v. American Sugar Refining Co., 241

U.S-at 86, the Supreme Court said: _~

i san f course the legislature may go a good way

~ changing the burden of proof, but there are

limits. ... [I]t is not within the province of a leg-

islature to declare an individual guilty or- presump-

tively guilty of a crime.” |

As Mr. Justice-Cardozo concluded in Morrison v United

States, 291 U.S. at 81:

_ “What has been written applies only to those pro-

visions of the statute that prescribe the rule for crim-

inal causes.” (Emphasis ours. )

See also 9 Wigmore, Evidence §2511 at p. 407; McCormick, ~

Evidence §313 at p. 661.

In the instant case, before the defendant assumed. the

burden of- proof, the state produced an eye-witness who

identified Stump as the assailant at the time and place of

the murder. It is true, this is not.a case where evidential

gaps were filled by use of presumption. Cf. Tot v. United

States, 319 U:S. 463 (1943). The vital prejudice here is

that the instruction compels the jury to believe the state’s

evidence’ relating to the defendant’s presence at the scene

of the crime, unless the defendant is able to overcome its -

effect by preponderating proof, Thus, as Justice Adams

6. The instruction is not permissive but compulsory: We» 8

you can acquit... by reason of this defense . .

phasis ours.)

s

mos ae

- early noted in dissent against the rule in State v. Hamilton,

_ 11 N.W. 5, 6 (fowa 1881), the “true doctrine under such . 4

‘rule would seem to be that the evidence of guilt is aided.

by a presumptiod of guilt, if the evidence of innocence re- .

lied upon is the evidence of an alibi.” The presumptive

jump here is at least as dangerous’ as if it were made

from an unrelated fact. In this case, it is created from no | °

facts at all. Here the arbitrary, irrational presumption of

guilt persists simply because a mari may try to prove his

' only@efense available, to-wit, non-presence. °

It is clear that in Leland v. Oregon, supra, Mr. Justice

Clark takes extreme care to point out (1) that the burden |

of persuasion as to the elements of the crime ‘never shifts

under Oregon law upon the plea of insanity, 343 U.S. at

, 795,°798, 800; (2) that the state still has to prove all ele-

ments of the crime itself beyond a reasonable doubt, id.

at 799; (3) that the jury could acquit Leland if they found

him mentally incapable of the requisite intent to sustain

a first or second degree murder conviction, even though

the proof fell short of legal insanity, id. at 794; and (4)

7. For an illustration of the comparative due process ef- —

fects of (1) a presumption which shifts the burden of going for-

ward [cf. United States v. Fleischman, 339 U.S. 349 (1950)] and

_(2) a presumption which acts to shift the burden of persuasion,

see the civil case of Western & Atlantic R.R. v. Henderson, 279

U.S. 639, 643-44 (1929), where the Court said:

“Each of the state enactments raises a presumption from

the fact of injury caysed by the running of locomotives or

cars. The Mississippi statute created merely a temporary

inference of fact that vanished upon the introduction of op-

posing evidence. Gulf, M. & N. R. Co. v. Brown, 138 Miss. 39,

66, et seq. Columbus & G. Ry. . Vv. Fondren, 145 Miss.

679. That of Georgia- as construed in ,

A

A23

that the placing of the burden can be explained by the

presumption of sanity recognized in all English courts,

id. at 799. 3

The defense of alibi is readily distinguishable from the _

plea of insanity. Basically, alibi relates to the presence

of the defendant at the scene of the crime.* Proof of the

defendant’s presence ‘and participation is a wholly in-

dispensable factor to the government’s case; it is a? sine

qua non. to sustain a verdict of guilty. “In reality the Iowa

instruction shifts the burden of persuasion on an essential

’ element..of the crime and thus requires the defendant. to

assume the onus of proving a negative averment, i.e., non-

presence. In contrast to an insanity-plea, Stump’s defense ~

did not admit the act in ‘any way, or any element of the

crime, but rather denied any knowledge of it. Nor is the

shift here based upén any conflicting legal” presumption

involved, as in insanity. see? os Se

8. In State v. Post. 123 N.W.2d at 18-19, the Court in ex-

plaining the alibi instruction makes this . clear:

“Although the defendant did testify that he was not present

at the time and place the holdup was committed, and stated

that He was in a tavern some four blocks away at the time,

we are not prepared to say that when the defendant testi-

fies in his ‘own defense and claims he was some other place

at the time of the crime, an instruction on alibi is required

or is proper. The burden of establishing defendant’s guilt

of the offense charged, of course, does not shift, and we

made that clear in the. Stump case. ~~

“It is well established in this State that in the ab-

sence of the alibi notice required by section 777.18, Code

of Iowa, 1962, I.C.A., the defendant may take the stand and .

claim he was far from the scene of the crime, and only the

credibility of his testimony is left to the jury, with the

burden to prove he was at the scene of the crime still

resting on the State. State v. Stump, supra. - We also .

pointed out in the Stump case that it is only when de-

fendant elects to go farthet and call witnesses to support

his alibi contention that he ‘assumes a burden, i.e. to es-

tablish his affirmative~ allegation or defense.” (Emphasis _

ours.) .

| A24 |

_* It is also plain that the state cannot justify shifting the

‘burden of persuasion on the basis of the standards set

out in Morrison v. California, 291 U.S. at 88-93, for here. .

the shift does subject the defendant to undue and arbi-

trary “hardship” and “oppression.” There is no “ex-

cuse” or “explanation,” nor any “balancing of conven-

fence” nor “a greater opportunity for knowledge” on the

defendant’s part. In fact, under the Iowa statute, Iowa

Code Ann. § 777.18°, the defendant must give the names of

all his witnesses as to the alibi issue to the state but the

state has no reciprocal duty. Under such a rule, it is not .

easy to perceive how the defendant has the balance of _

knowledge.

Beyond violating petitioner’s right to have the state

‘assume the burden to prove (beyond a ‘reasonable doubt)

his presence at the crime, we think the Iowa instruction

and its judicial application is patently offensive in- other

ways to the defendant’s basic constitutional rights. Under

the Iowa rule, a defendant pleading alibi faces an anoma-

lous situation. If he does not plead and offer witnesses

to corroborate the défense of alibi, the ‘burden. of proof

never shifts to him and he may rely upon the state’s ”

failure to establish his identity and presence beyond a

reasonable doubt. This, of course, is often done by at-

tacking the credibility of the state’s witnesses, especially

by challenging their capacity to have made proper observa-

‘tion. Or if the defendant chooses to rely solely on his own

persuasive powers and testify, under the Iowa rule he

can still assert an alibi defense without any jeopardy to

his basic rights. It is only when the defendant seeks to

produce witnesses to corroborate his non-presence that the

Towa rule incongruously penalizes him with the burden

9. Because of our reversal, we find it unnecessary to dis-~

cuss defendant’s separate constitutional objection to this statute.

—<

ae

eantresemnnctnieiypes tasted sar

e

mo

of persuasion as. to his non-presence. See State: v. Stump,

119 N.W.2d at 218 and the more complete explanation of —

this strange rule in State v. Post, supra note 10, 123. N.W.2d

at'18-19. Thus an innocent person, whose only refuge of

innocence may be proof of his non-presence and non-par-

ticipation in the crime itself, must risk this greater burden

a because he tries to bring witnesses forward to substantiate ne

his story.’ He must choose between the exercise of two

constitutionally guaranteed rights. He must surrender

either the right to other corroborative evidence of his

innocence or else his traditional right to have the state

assume the burden of proving his guilt beyond a rea-

sonable doubt. Under the Iowa rule-he cannot have both.

Such a procedure can have no other purpose than to “chill

the assertion of constitutional rights by penalizing those

who choose to exercise them...” This is an impermissible

burden. Cf. Jackson v. United States, 36 USL.W. 4277,

4281 (U.S. April 9, 1968); Simmons v. United States, 36

U.S.L.W. 4227 (U.S. March 18, 1968). Thus, a defendant.

. must carefully consider the risk inherent in offering evi-.

dence of his full defense. Any deterrent to the right to

be heard in full and to offer, evidence in defense of life or

liberty violates the oldest and deepest-rooted foundation

of due process. The Supreme Court in Powell v. Alabama,

287 U.S. 45, 68 (1932), characterized. the right to be heard

as an axiomatic essential of due process.

< never has been doubted by this court, or. any

- other so far as we know, that notice and hearing are

preliminary steps essential to the passing of an en- -

10. It seems elementary that the art of persuasion lies in

the art of corroboration.

only his testimony oe it. How it ceases toy be such an

elerient when the defendant offers witnesses as to his alibi is a .

mysterious: non sequitur.

A

“forceable judgment, anid that they, together with a

legally competent‘ tribunal having jurisdiction of the

case, constitute basic elements of the constitutional re- ©

quirement of due process of law. The words of Web-

ster, So often quoted, that by ‘the law of the land’ is in- |

tended ‘a law which hears before it ‘condemns; have

been repeated in varying forms of expression in a mul- ~

. titude of decisions. In Holden v. Hardy, 169 US. 366,

389. the necessity of dué notice and an opportunity

of being heard is described as among the ‘immutable

principles of justice which inhere in the very idea of

free government which no member of the Union may

‘disregard.’ And Mr. Justice Field, in an earlier case,

Galpin v. Page,:18 Wall. 350, 368-369, said that the

rule that no one shall be personally bound until he has’

had his day in court was as o]d as the law, and it

"+ meant that he must be cited to appear and afforded an

opportunity to be heard.”

See also Hélt.v. Virginia, 381 U'S. 131, 136 (1965).

' The Iowa rule offers different procedural protection to -

those individuals pleading alibi who (1) are unable to pro- -

duce witnesses to verify: their defense or (2) who perhaps

' may be more willing to forego the production of witnesses

to avoid incurring the burden of persuasion as to their in- —

nocence. To shift the burden because a particular defend-

ant offering the identical defense happens to be able to

present corroborating witnesses, is basically so unreason-

able we deem it a patent denial of the equal protection of

the laws under the Fourteenth-Amendment. There can be

no logical rationale behind such an arbitrary distinction.

Although on its face the rule may be deemed one of evi-

dence in which a state’s procedure is to be given great

, deference (cf. Salsburg v. Maryland, 346 U.S. 545 (1954)),

nevertheless the denial of rights justified only as a penalty

assessed to a defendant calling witnesses to testify on his.

. behalf cannot be deemed a reasonable justification for the

A27 ee

3

~ rule.™ The principle of Yick Wo v. ogra, 118 US. 356,

373-74 (1886) ; is still viable:

“Though the law itself be fair on its face and impar-

tial in appearance, yet, if it is applied and administered

by public authority with an evil eye and an unequal

hand, so as practically to make unjust and illegal dis«

criminations between persons in similar circumstances,

material to-their rights, the denial of equal justice is

still within the Brobitition of the Constitution. “i

_ Last of all, given the constitutional infirmity, we must —

consider whether it was “harmless” under the circum;

stances. See Chapman v. United States, 386 US. 18, 24

(1967); Anderson V. Nelson, 36 US.LW. 3381 (US. April

1, 1968).

This issue must be resolved in the context of the state’s

contention that the complete instructions did not remove

the state’s burden to prove the crime; and the elements

thereof, beyond a reasonable doubt. It is in effect con-

tended that if any inconsistency or error in shifting the

burden of proof as to alibi occurred, it was cured by in-

structing the jury’ that the state must still prove defend-

ant’s guilt as to the “case as a whole” beyond a reason-

able doubt.

- The difficulty with this sili is that it denies all

meafiing to the first and second paragraphs of the instruc-

tions (see note 6, supra) which emphasize that to acquit

the defendant on the defense of alibi he must prove it

by the preponderance of the evidence. What purpose has

the instruction on alibi if the court’s intent was to retract

it or change its meaning. the next breath? Could not

11. Cf. Commissioner Public Welfare ex ish Martinez

Vv. serra, 263 App.Div. 19, 31 N.Y.Supp.2d . 101 .(N.Y.Sup.Ct.

1941). .

A28

reasonable minds infer, particularly from the last para-

_ .graph of the instruction, that deféndant still has the

burden of showing non-presence, even though the burden

- remains with the state to prove “the crime as a whole”?

. Would not a jury feel the instruction on alibi is intended

to mean. what it says? Again, ‘constitutional error must

_appear to be harmless beyond a reasonable doubt: before

we can. disregard it. Chapman v. California, supra. If

inconsistent meanings are conveyed by the instruction,

whereby a jury could derive an erroneous understanding

of the burden, it is difficult ° to reason that a reasonable

doubt does not exist as to the prejudice involved. We

faced the identical question in Glover v. United States,

147 F. at 433 ,, and held that such a curative charge did not

remove the error.

In Perez v. United States, 297 F.2d * 16 (5 Cir. ad

the court said:

“It is- also fundamental to our jurisprudence that

‘instructions to the jury must be consistent with each

other, and not misleading to the jurors.” Smith v.

. United States, 230 F.2d 935 (6th Cir. 1956). The fact |

that one instruction is correct does not cure the error

in giving another .that is inconsistent with it. Smith

v. United States, supra. Most important, in no con-

dition of proof is it permissible to leave with the jury

the idea that it had become the duty of the defendant.

> to establish his innocence to obtain an acquittal. See

e.g., Ezzdrd v. United States, 7 Baa 808 (8th Cir.

1925).”

‘See also Mann v. United States, 319 F.2d 404, 410 (5 Cir.

1963). Where there are “probabilities of confusion” to

lawyers as well as to laymen, we cannot ighore the preju--

dice. See Bihn v. United States, 328 U.S. 633, 637 (1946).

See also Blocker v. United States, 288 F.2d 853, 856 (D.C.

| Chr... 1961). “The argument for “harmless error” is some-

_ what difficult to digest where the denial of the right under- .

mines a defendant’s only claim to innocence. But perhaps __

more important, “harmless error” should not be a deter-

minant when a defendant has been forced to choose be-

tween two valuable -constitutional rights, or has been

denied the equal protection of thelaws. =§=§ ~*~.

In summary, the Iowa instruction. in its aia

application was arbitrary and oppressive to the defend-

ant’s basic constitutional rights, It penalized the defend-

ant for offering witnesses in his defense, denied him the ©

equal protection of the laws, deprived him. of the presump-

' tion of innocence and shifted to him the burden of persua-

' gion to negative an indispensable element of the crime,

_ to-wit, his preserice and ee at. the time and, place

involved. 8

That an oppressive shifting of the burden of ini to

a criminal. defendant violates due process is not a new

‘doctrine within constitutional law) Under these circum-

stances we are not directly faced with issues of retro-

activity. We recognize that a panel of this court, in

| Johnson v. eee 386- F.2d 677, 682-83 (8 Cir. 1967), °

cert. granted . eS tree (1968), also a habeas corpus:

proceeding by an Iowa State prisoner, refused relief as to

a number of matters, including the alibi. instruction. The

Johnson case concededly has some factual > distinctions

from: the present one. Also significant is the fact that in.

the Stump case, unlike Johnson, counsel has carefully pre-

served by objections throughout the trial .and appellate

procedures his argument as to the unconstitutionality , of:

. the instruction. |

In the present pena e burden of prcof,. ‘tis with

‘unilateral duty to disclose witnesses, is placed on the

defendant on the only live issue of fact in the case.. There

"was no issue on the fact of homicide, the means of homi-

ee ee PN

cide or the cause of death. “Here the only live issue was sid ;

the presence of the defendant at the scene of the crime. |

_ Subsidiary issues of deliberation and intent relate. to

' the degree of the unjustifiable homicide. However, here _

the petitioner pleaded complete ignorance or lack of knowl- -

edge, and therefore even. ‘these issues depended ina signifi-

cant degree solely on_his establishing his alibi. The cumu-

lative effect. in this case was to deny due process ‘by

affecting the integrity of the fact finding process leading

to the conviction. “In all kinds of. litigation ‘it is plain

that where the burden of proof lies may be decisive of the

outcome.” Speiser v. Randall, 357 U.S. at 525. |

_The State of Iowa is entitled to a reasonable time ‘to

-retry this defendant for the crime charged. He must still

face the alleged truth of the charge. If proven guilty, he

‘will not go free. However, every person is entitled to the

‘full protection of due process and the equal protection of

the laws fundamental to a fair trial. This is singularly ee

- true. when life or liberty of any individual be involved. —

A state cannot withhold these rights from some defendants

and grant them to others similarly situated. Nor can this |

court deny these rights even’ if we felt the evidence con-

clusively demonstrated guilt. It is not for us to assess

the: evidence but only to _—— constitutional. 5 geal

antees.

TA: Pending: a . retrial by. the state, the district court. is in-

structed to stay further proceedings. Upon retrial, the’ : |

"present. petition of Stump for release on habeas corpus

_ should: be dismissed.’ If retrial is not granted within a = = |

_ reasonable time, not to exceed one year from the date of ©

the mandate of this court, or in the event certiorari to the ..

Supreme Court is applied for by the state, not to exceed

“one year from the mandate of the Supreme ‘Court, the — os

district court is directed to grant Stump’s petition for a writ = col

«of habeas corpus. ees ee

7

A31

The judgment appealed from is reversed and the case.

remanded for further praeeene consistent with this opin-.

ion. |

| VAN Cintas Chiet Judge, with ‘hee pee ‘a

2 - _Menarry,.Circuit. Judges,*concur, dissenting:

-We respectfully dissent. We would affirm ie ot.

court’s judgment santa the — for writ of habeas

corpus. ~* : P

The majority opinion very ecu ‘cians

that the defense of alibi is not an affirmative defense and.

that an instruction placing the burden on defendant to

» ‘establish alibi by a preponderance of the evidence is er-. ©

roneous. We agree. | This court so held in Johnson v. Ben- con

_ nett, 8 Cir., 386 F.2d 677. No disagreement exists with the .

. Majority view that the defendant has a constitutionally

protected right to have the benefit of a presumption of in- . .

‘nocence at his trial and to have the. burden placed upon

the prosecution to establislt his guilt beyond 8 reasonable: :

i doubt. .

The federal cases cited am the. majority opinion in sup-

port of a reversal are all cases dealing with a-reversal on

' . direct appeal from a federal conviction. It would also ap

pear that the instructions. in the cited cases are less ex-

~ plicit in advising the. jury that the evidence ‘on horse is. to

- be ponieitered on the issue of guilt. :

= The case before us involves a state conviction affirmed

". . by the State Supreme Court on January 15, 1963. State v._

_ Stump, 119 N.W.2d 210, cert. denied, 375 U.S. 853. The

me -etime upon which the conviction was based occurréd on

~ "June 9,1961. As the majority opinion concedes, due process -

Bente: ‘permits the state a wide range in developing rules of pro-

cedure and evidence. Federal appellate courts do not: have

the same mpentinney power over state. counts as they do

u 3 ° e

i - °

° : . _ :

é ; . - ; / :

° 3 4 a : # : - _ S

tema: . - “ .

eo

A32

_ over federal trial courts. Only arbitrary and oppressive

state procedural rules which go to the extent of depriving

a defendant of his federally ‘guaranteed constitutional

rights warrant upsetting of a state court conviction.

‘The point of departure from the majority opinion is

upon the issue of whether the instructions -given when

_ fairly considered as a whole do in fact deprive the defend-

ant of the benefit of the presumption of innocence. It

is cur View that thay do act.

| diet apes Comut 06 Tens upen Witndaate inset

appeal, State v. Stump, supra, considered and rejected

the constitutional attack here made. The Iowa Court ad-

heres to its long-established rule that alibi is an affirma-

tive defense on which the defendant has the burden of ~

proof. In its opinion, the pertinent applicable law is thus

“In the trial of a criminal case a defendant is not

required to do anything. Even though he elects to do

nothing the prosecution in order to convict must es-

tablish defendant’s guilt beyond a reasonable doubt.

‘This burden on the prosecution never shifts. It re-

‘mains throughout the trial aS a shield for defendant.”

119 N.W.2d 210, 218. ©

With respect tothe burden of prot alibi, the Court

states:

‘iii sen ctiby te’ tn tasiimany that he was at some

specific place. If established it constitutes an absolute

defense. To the extent that it may be an absolute

defense it, is affirmative in nature. Even though not

affirmatively established itis still defensive against

the prosecution’s burden of establishing defendant’s

-guilt a reasonable doubt.” (Emphasis added.)

+ 119 N.W.2d 210, 218. - ;

ee

A33

The challenged instruction, No. 14, is set out in full

in the Iowa Supreme Court opinion bis also set out in

- footnote 5 to the majority opinion. majority opinion

telies largely upon the isolated quoted statement in para-

graph 2 of instruction 14 reading:

“ .. before you can acquit the defendant by reason

of this defense [alibi] you must find that he has estab-

lished it by a preponderance or greater weight of the

evidence bearing upon it.”

Immediately following the portion just quoted. and in

the same paragraph, the instruction continues:

“If he has established by the greater weight of the

evidence that he was on the highway between Des

Moines and Knoxville, Iowa, at such a distance from

Des Moines that he could not have committed the ~

- erime charged herein, you should return a verdict of not

guilty.”

Thus, the jury is plainly told that if defendant has

proved by a preponderance of the evidence that at the

time of the crime he was at a place other than the scene

of the crime, he should be \acquitted ‘forthwith. The in-

struction does not either by express language or by fair

implication state that if defendant has not proved alibi he

‘should be convicted. Nor does the instruction advise the ©

jury that if defendant has not established his alibi the

evidence. offered in support of alibi can have no further

consideration. . Instead, the court specifically instructed

the jury that in event it has not found for the defendant

on the alibi issue, to proceed- with the consideration of

the case as follows:

the defendant has failed to establish this de-

fense a greater weight of the evidence you should

still der the evidence which has been introduced

in support thereof, and if, after considering the case

A34

as made as a whole including this evidence, you enter-

tain a reasonable doubt as to his ha committed

the offense charged or either of the tcl offenses

hereig, you should return a verdict finding the defend-

;

“You will understand that the burden of proof.

did the shooting. By reason of this burden’ resting

upon him, he is not bound or required to prove his

a verdict of guilty on any

The Supreme Court, this court and other courts have

uniformly held that fragments of instructions chould not

be considered in isolation but that instructions should

fairly be considered as a whole and principle governs

in cases where violations of constitu rights are as-

States, 8 Cir., 341 F.2d 456; Harding v. United

States,

232 F.2d 385, 389; United States v. Andreadis, -2 Cir., 366

F.2d 423, 434; United States v. Senior, 7 Cir., 274 F.2d 613, —

_ 616-17. See 23A C.J.S. @iminal Law § 1321 (1), (2).

' Leland v. Oregon, supra, affords strong support for an

affirmance here. In that case, a murder conviction was

affirmed. Oregon by statute required that a defendant

pleading insanity should establish such defense beyond a

<

aE . : et aaa =

A35 »

reasonable doubt. Defendant tendered the insanity de-

fense. The trial court, pursuant to the Oregon statute,

placed the burden on the defendant on the insanity issue.

However, the usual instruction placing the burden upon

the prosecution to establish essential elements of the crime

beyond a reasonable doubt was given, as is the situation

in our present case. In holding that no error was thereby

committed, the Court states:

“It is contended that the instructions may have

confused the jury as to the distinction between the

State’s burden’ of proving premeditation and the other

elements of the charge and appellant’s burden of prov-

ing insanity. We think the charge to the jury. was as"

clear as instructions to juries ordinarily are or reason-

_ably can be, and, with respect to the State’s burden

of proof upon all the elements of the crime, the charge

was particularly emphatic. Juries have for centuries

made the basic decisions between guilt and innocence

and between criminal responsibility and legal insanity

upén the basis of the facts, as revealed by all the evi-

dence, and the law, as explained by instructions de-

tailing the legal distinctions, the placement and weight —

of the burden of proof, the effect of presumptions, the

meaning of intent, etc. We think that to condemn the

system generally. We are not prepared to do so.” 343

US. 790, 800. | ,

The Leland Court, at p. 797 of 343 U.S., recognizes

that the Supreme Court in Davis v. United States, 160 U.S.

469, “announced the rule for federal prosecutions to be that —

an accused is ‘entitled to an acquittal of the specific crime

charged if upon all the evidence there is reasonable doubt

whether he was capable in law of committing crime.

999

The Court then states: “The decision obviously estab-

lishes no constitutional doctrine, but only the rule to be

followed in federal courts.” 343 U.S. 790, 797. In support

of such statement, the Court at p. 799 observes:

7 ‘

‘Witewrpe cairns mem.

tes

a ee ae eee — - is

ASC

ad “The judicial judgment in applying ‘the Due Process

Clause must move within the limits of accepted” no-

tions of justice and is not to be based upon the idio-

syncrasies ‘ofa merely personal judgment. . An

important safeguard against such merely individual

judgment is an alert deference to the judgment of

the state court under review.’ Mr. Justice Frank-

furter, concurring in Malinski v. New York, 324 U.S.

- 401, 417 (1945). We are therefore reluctant. to inter-

fere with Oregon’s determination of its policy with’

respect to the burden -of proof on the issue of sanity

since we cannot say that policy violates generally ac-

cepted concepts of basic standards of justice.”

The majority opinion in our present case states that

there is more reason for placing the burden of proof of

insanity upon the defendant than there is in the alibi

situation. This may be conceded. Nevertheless, the rea-

soning of the Leland case to the effect that the instruc-

tions as a whole preserve defendant’s constitutional right

to the benefit of the presumption of innocence is persua-

sive and convincing authority. ,

In Johnson v. Bennett, supra, -this court rejected a simi-

lar attack on the Iowa alibi instruction. In that case,

other substantial issues were raised apart from the alibi

issue. We are aware that the Supreme Court has granted

certiorari in Johnson. We have no means of predicting

_ whether the Supreme Court will reach the alibi issue in °

such case, and if so, what the result will be. Parentheti-

cally, we note that we consider the instructions in the

present case somewhat stronger with respect to preserving

defendant’s constitutional rights than was the situation —

in the Johnson case. It ‘is also noted that the Supreme

' Court has in quite a number of instances refused to apply

new constitutional privileges retroactively. See Johnson v. -

Bennett, supra. See aiso, Stovall v. Denno, 388 U.S. 293,

296-301, where criteria for determining retroactivity of

newly announced constitutional privileges are stated.

ao

OO IE EN rT TIRED Creer reecengrceemernant is tn pe i

A37.

_ As heréinabove stated, no disagreement exists with the

majority view that an instruction placing the burden of

proof of alibi upon the defendant is erroneous. Such an

" instruction should not be given. It places the jury through

a useless gesture of determining whether the, defendant

met the burden of establishing alibi and if so, it allows

for acquittal forthwith. However, the alibi burden of

proof instruction is not inconsistent with the clear direc-

tion given the jury in the instructions in the present case

to the effect that the burden is on the State to prove de-

fendant guilty beyond a reasonable doubt upon the basis

‘ of all the evidence, including that offered in support of

alibi.

In addition to the clear language of the third and fourth

paragraphs of instruction No. 14, the court in other in-

structions squarely places the burden upon the state. to

* prove all essential elements of the offense beyond a rea-

sonable doubt.. The usual instructions on the presumption

of innocence and reasonable doubt are given. Thus it

appears that when the instructions are fairly . considered

- as a whole, the burden is firmly placed. upon the State on

the. basis of all the evidence, including that offered in

support of alibi, to prove defendant guilty beyond a rea-

sonable doubt. Under the instructions given, defendant

“has been given the full benefit of the Paar of

innocence.

The majority opinion in several places speaks of f alibi

as the sole defense. The defendant entered a plea of not

guilty to the indictment. By such plea, as the court prop-"

erly advised the jury, defendant has put in issue all ma-

terial allegations of the indictment. The . instructions

squarely. place the burden, upon the State to prove all °

essential elements of the offense. charged beyond a rea-

sonable doubt.

A38

ae

{ :

Defendant’s former . fiancee, Leanna Skultety, who

knew defendant well, testified positively that she saw the

defendant fire the fatal shot. There is corroborating evi-

dence, as outlined in the state trial judge’s memorandum

overruling the motion for a new trial, A requisite element

of the offense is proof that. the defendant’ fired the fatal

shot _. Obviously a determination by the jury beyond a

smentnahie doubt that defendant fired the fatal shot would

carry with it a finding that the defendant was within .

firing rangé at the time he fired the shot.

The evidence in support of alibi is extremely weak

even if the evidence supporting alibi is accepted at face.

value. The fatal shooting was reported to the ‘police at

8:34 p. m. It apparently was reported promptly but a

slight interVvenecessarily existed between the event and

‘the-report. It is defendant’s testimony’ that he left Des .

Moines,about 8 p. m. and that he was enroute to Knox-

ville at the time of the shooting. He states that he ar-

rived at the Mobil Gas Station in Knoxville shortly: after’.

9p.m. It is undisputed that the distance from the murder

scene to the gas station is forty-two and one-half miles.

An officer testified that he made the trip between the

o murder scene and the gas station in forty-seven minutes

while observing all speed limits. Richard Kaster, an alibi

witness on behalf of defendant, testified that defendant

stopped at the gas station between 9:10 and 9:15 pm. He

said he left the gas station to pick up a car eleven blocks

distant and that he nad looked at his watch when he started

' that trip and it was 9 p.m. It was shortly after he com- |

pleted such trip and had pushed a car the eleven blocks

back to the station with his pickup that ‘defendant ar-

rived. Neither defendant nor Kaster, nor any other wit-

nesses offered who were at the station, had recently looked _

at their watches or were able to state with any degree

Pk Si aM CaO LAR

“~

eit | A39

of precision the time when defendant appeared at the

_ Station: —

Judge a in his opinion dismissing the writ,

determined upon the. basis of the principle stated in

Leland v. Oregon, supra, that the instructions given, al-

though not a model of clarity, did not constitute “a failure

to observe the fundamental fairness essential to the very _

concept of justice,” and that.no violation of due process —

had been established. We agree with such conclusion.

Defendant’s contention that § 777. 18, L C.A., is un-

constitutional lacks merit. No cases are cited in support

of such contention. Section 777.18 requires a defendant

to give written notice of. intention to use alibi witnesses

and to set forth the name, occupation and address of the

alibi witnesses and the substance of what the defendant

expects to prove. ‘Such appears to be a reasonable pro-

_ cedural rule designed to expedite the trial. If at the time -

of the trial defendant for the first time offered evidence

' that he was at a distant point at the ‘time of the crime;

fairness might well require a continuance io permit the

State to investigate the truth of such evidence. As is

pointed out by Judge Stephenson, the State is’ required to

give a defendant similar information as to evidence to be

used in its case in chief, either by minutes attached -

the indictment or by notice.

‘In/any event, defendant se with § 777.18 and

there is, nothing’ to show that he was handicapped in any

way irrpresenting any alibi evidence which he might choose

to .present. No prejudice rising to the dignity of a due

- process violation has been shown.

The short answer to the majority. contention that the

defendant was confronted with the dilemma of choosing

between two constitutional rights—the right to offer alibi

A40

cad

oe testimony in his defense or the right to have the benefit ;

of the presumption of innocence—is that under the in-

structions given cefendant did not lose any right to have

_ the benefit of the presumption of innocence by the intro-

duction of testimony in support of alibi.

" Defendant raises a third point to the effect that his —

rights under the Fifth, Sixth and Fourteenth Amendments

~ to the Constitutiori of the. United States were violated by

the reception of evidence of certain allegedly incriminating

statements made by defendant fo police .officers while in

custody. Such issue is not reached by the majority opin-

ion. : ee othe

The trial court found as a fact after an evidentiary

hearing that the statements in controversy were voluntary

and not coerced, and so determined that inasmuch as the

~ ease was tried prior to the Supreme Court decisions in

Escobedo v- Illinois, 378 U.S. 478, “and Miranda v. Arizona, -

384 U.S. 436, the holding of such cases do not apply under |

_ the teaching of Johnson v. New Jersey, 384 U.S. 719. We

would affirm upon this issue upon the basis of the trial

court’s opinion. .

The right given the State by the majority Opinion to

retry the defendant is one of doubtful valu@ In the seven

years that vain intervened ‘since the congnission of the

crime, it is likely that some of the witnesses will no longer _

‘be available and that the memory of other witnesses will

--be dimmed by the passing of time. ‘The orderly and fair

administration of justice will not be. -furthered by such a

drastic remedy under all the circumstances existing in the

record in this case.

. _ * The judgment: disinissing ae petition for habeas conpus

= be affirmed. )

ee on

: AAl |

| Marruss, Judge, with whom: Chief J udge Van OosrenHour

'. and Judge Menarry join, dissenting. ,

I concur in Chief J udge ' Van:Oosterhout’s disient.

In examining the trial court’s comprehensive instruc-

tions, I find that the jury was informed on at least twelfe.

different occasions that it was required to determine be-

ygnd a reasonable doubt that defendant had committed the

offense before it could find him guilty.’ In this posture, it is

inconcéivable to me that the defendant was deprived of the

=. of innocence by reasoy of the alibi instruc-

tion. ‘I believe that the. jury, presumptively composed of

reasonably intelligent persons, understood that all essen-

tial elements of the offense had to be estahlished beyond

‘a reasonable. doubt. For this reason I am unable to com-

‘prehend any rational basis upon which to interfere with _

the judgment of the state court in this post-conviction pro-

ceeding, = == — : ie

’_ A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.

APPENDIX C

Instruction number 14 at the Respondent's. trial read as

"follows: | fe

“It is the- claim of the defendant that at the time of -

the shooting of Michael Daly referred to herein he was

on the highway between~Des Moines and Knoxville,

_ Towa, and consequently that he could not have com-

mitted the offense charged herein or either of the in-

cluded offenses: He seeks to establish this claim by

a witness or witnesses who have testified herein and

also by his: own testimony. This defense i is ev

known as an alibi,

o.oo

“The defendant has the burden of\;establishing this

-defense by:the greater. weight of’ the evidence bearing 5

upon it,.and before yoy can acquit the defendant by

f reason of this defense you must find that -he ‘has estab-.

' lished it by a preponderance or greater weight:of the .

. evidence bearing upon it. If he has established bythe

_ greater weight of the evidence that he was on the high-

way between Des Moines and Knoxville, Iowa, at-such

a distance from Des Moines that he could not have com- |

mitted the crime charged’ herein, as should return |

a verdict of not guilty. j

“Tf the defendant has failed to establish this. defense

by a greater weight of the evidence you should stil]

consider. the evidence which has-been introduced in

support thereof, and if, after considering the case as

made as a whole, including this evidence, you.enter- ~* . .,

tain a reasonable doubt as to his having.committed the. |

offense charged or either of the included offenses here-

in, you should return a verdict finding the defend-

~ ant not guilty.

“You will understand that the burden of oropt referred

to in this paragraph rests upon the defendant only as

- ‘to the proof that he was on the highway between Des

Moines and Knoxville, IoWa, at the time the shooting

occurred and at such a distance from Des Moines that

‘he could not have been the person who did the shoot-

ing.- By reason of this burden resting upori him, he is

not bound or required to prove his innocence as to the

» whole case, for the burden of proof rests upon the state

as tothe case ds a whole to prove the defendant guilty

_ beyond a reasonable d bt before a verdict: of ‘guilty

on any of the charges ; herein can be returned

against him.”. . : ; on ae.

The Record, Volume IL, 569- 70. . x,

Instruction number 16 in the 1934: trial of State Vv. Johnson

read as follows: && . -

“Ryidence has been admitted on behalf of the. defend-

ant of what is known as an alibi, which means that the

oo ee a re

dbtendant at the time that the sineiil murder is

charged to have, been committed was at another place

_ . $o that he could not have committed the same. You — |

are instructed that such defense ‘is proper and legiti-

mate as any other, and you are also instructed that

you scan the proof of alibi with care and caution, and

all the evidence upon this point both for and against

- this claim of alibi should be scrutinized with care and

: carefully considered by the jury.

. “The burden is upon the defendant to prove this

defense by a preponderance of the evidence, that is,

' by the greater weight or superior evidence. The de-

ferise of alibi to be entitled to be considered as es-

tablished must show that at the very time of the com- _

mission of the crime the accused was at: another place

so far away, or under such circumstances that he could

not with ordinary exertion. have reached the place

where the crime was committed so as to have com-

mitted the same. If by a preponderance of the evi-

_ dence the defendant has so shown, the defense must.

be considered established and the. defendant would be :

entitled to an acquittal. But if the proof of alibi has

failed so to show, you will not consider it established _ .

or proved. The evidence upon this point is to be con-

sidered by the jury, and if upon the whole case in-

‘ cluding the evidence of an alibi, there is a reasonable

_doubt of defendant’s guilt, you should acquit him.”