Petition for a Writ of Certiorari — Mancusi v. Stubbs

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E ROBERT SEAVE Q ct pt

IN THE

Supra Court of ‘the United States

OCTOBER TERM, 1971.

=e] - - 237. cs

VINCENT R. . Mascot, Warden of Attica eae

ree,

Petitioner,

against :

, Wrua'C. Srusss, ie

Bie shee . Respondent. _.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT —

Louis J. Lerxowrrz

Attorney General of the -

State of New York .-

‘ ae . Attorney for Petitioner

te . 80 Centre Street

: (ee New York, New York 10013

’ First Assistant —. General

~ Marta L. Marcus : ; ‘ 7

Assistant Attorney General ee penne

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TABLE OF CONTENTS .-

—

sie Su Ge VAROS Bed 04 ne kha ee ed cya

on ‘ ’

Queitions deheencsaca tt oot ee ee ae

ortega ere ee nes

Reasons for Allowance of Writ.

IL. Th decision below: constitutes 28 ‘thai

departure from © the. prior decisions. of this .

aceite ist ere Pe ae ter ee

2 The decision } below. conte cho so tie in i

four —_ cirenits .

ri OOS OR Eh C4 OMe 6H 8 6d

sit onugna dh LE EEO eg eee i

_Aronsrx ADenial of Petition for Retiearing. hx eas

_Arexor B—Denial of Petition for Rehearing In

ae. ‘Bane

Aremone C—Decision of the United States Court of.

Appeals for_the Second Circuit beucas Sa

- Arm D—Décision of the United States District

Court for the babccotnin — of N ew :

Sy OR:

ere ps saveres eee .

Sie Ge | =

Ree Bailey v. . United Stades: 410 F. 24 1209. (10th Cir.

J i) S968), cert, denied sub nom. Freeman v. United

voy vs, AStaitem, 306-0: 87988 3. feck: ee.

| _. Barber v. Page, 390 U. S. 719. (1968) . eins te

fee. California v. Green, 399 U. S. 149 (1970) .. o oees eel BM

Je Chambers v. Maroney, 399 U. S. 42 (1970) ves yens ook

MG Dutton: v. “Evans, — U.S. —, 91 S.Ct. 210

‘Handy. y: United States, 394 F. 2d N7 (doit Cir, 1968), "

Goldwasser’ v. Brown, 417 F, 2d (D. C: Cir. 1969) .

Golubin -v. United States, 393 F. 2d 590 (10th Cin,

~ Holman vy. ‘Washington, 364 F. 2d 618 (5th. Cir. 1966) .

‘3 People v. Ashford, 71 Cal. Rptr. - (Ct of App.

i AR ey ac dota ee, a”

: People Vv. Benjamin 83 Cal. ptr, big (Ct. of App.

~ $tabbs v. Bomar (Civil Action 3585, M. D. Tenn). . 3 12

Williams v. Beto, 354 F. 2d 698 (5th Cir. >

e . * Re

cert. denied 398 U. S. 1008 «5.2... 0.5 estos 4

| 1968), cert. denied 393 U. S:831 ...........:... Me.

: Gov ernment of. Virgin Islands v. Aquino, 378° F. 2d

mE . - 40. (8rd Cir. cote ROO PETE IO, ee 10

wal + Siinesinat California, 395 U. S. 250 (1960) ....:. 16

_» Nelson v. People of ‘the State of California, 346 F. ee

13 (9th Cir. 1965), cert. denied 382 U.S. 963: ee

1970) +... Ni eh Mee AL

‘Stubbs: V. State, 216 | Tenn. 567, (393 S. W. 2d 150... ll 15 .

pape eee

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Wilbon v. Nei 408 F. 24.1105: (ath oe 1969) ...... 19°

United States v. Boyle, 402 F. 2d 757 (8rd Cir. 1968), a

cert, démiBd 394-U. S. 934 notes eu en EY. Sessa. a

United States v. ‘Chappell, 353° F. 20.88 (4th Cir.

: United States v. Laxember, 374 LP 2d 241 (6th Cir, ae

87) speeds ceeen sacs (Se iheses us Ser. ons dads | Bae

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Supreme Court of the Auited States

OCTOBER TERM, 1971.

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os Sie ae

Vixcexr R. Macust, Wrden-of Aitica Correctional __

Pes Bane he Petitioner, -

| oe agamst EB: Us aagkepe So

sa es . Respondent. —

Se eee RES ee . ok:

’ PETITION. FOR WRIT OF RTIORARI TO THE .

| UNITED STATES COURT OF “APPEALS FOR THE

)--* SECOND. CIRCUIT VETS

‘To the Honorable Chief Justice of the Uniteg States and _

the Associate Justices of the Supreme Court of the United —

_ ‘ Petitioner prays for writ of certiorari. to Teview the ae eee

judgment and decree of the United States-Court of Ap-. -

same day, the petition for rehearing in banc was denied.

he orde of the United States Court of Appeals deny- ©

ing the petition for rehearing and rehearing in banc are

teproduced as Appendix “A and Appendix B to this peti-

tion. The opinion of the United States Court of Appeals

PDP AIA LB! Ht PERE Fel MS

_ States District Court for the Western District of New York

oe -) violated at his second. trial for murder hy the introdue- *

ae the retrial that’ he had forced the murder victim and her

: for the “Son C Cireuit is revorted = 442 F. 2d 561,”

se appended herdto as Appendix C. The opinion of the United

is not ees ae is eevee hereto as a D. :

Nd eR are _Juviadiction :

‘eo :

eee urisdiction’ of s Court is shoot sian to Title

_ 28, USC. § obi The judgment of the Court of: Ap -

. peals was entered on April 19, 1971° reversing the denial.

“of respondent’s petition for a writ of habeas corpus by the”

United States District Court for the Western District of

‘New York. A petition for rehearing or rehearing i in bane

was — d by the send of — on wap 19, am L

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i Whether: e rule of. due ‘Qlidsace in “ chlniaing ‘the.

= presence of an absent witness precludes the use of prior ~

recorded testimony of a witness who was. a permanent :

’ resident of another country at the time a aber. a

‘second trial for. murder i in Tennessee? , : £

2. Whether. respondent ’s right ‘of: confrontation ‘was-

tion. of. prior recorded * ‘testimony. of*an unavailable wit

miniateiosiit that testimony had been subject to cross-

e tion by poh but the trial had later -

- been vacated. ‘because counsel been tardily beaten 44

. 3, Whether ‘the ietevidaclion - prior. eetaktlesl testi

_. mony.at respondent’s second trial was harmless beyond

a reasonable doubt, where: respondent himéelf testified at

husband into a car. ‘gunpoint and compelled them ce

drive to the _ where the enooting occurted :

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PEI LEONI LON AL LONE AE EAR TNE NET EGIL Prancte g Soenn go bain tales Fs

: 4 Whether every ‘ieee hypothesis except wail ue

must be*excluded in order, to sustain a. conviction on col-

lateral review iste . ;

Scsiieendait was convicted i in Monros County, y "7

in 1966 for assault inthe first degree and poss

“a firearm. § ‘On October Z, 1966 he-Was ‘sentejiced as a ;

tences to n tons onsectitively.

a “On June 24, 1968 the Appellate Division, Fourth Depart: ae

| ment, affirmed the conviction without -opinjon (30 ‘A.D. 2d .

777) and reatgument was denied on September 19, 1968 —

(30 A. D. 2d 932). -Leave to appeal.” was subsequently

denied by the New York Court of Appeals. * On. February oe

a 1969, this Court denied certiorari (393 U; 8. 1108),

‘The increased punishment Imposed upon respondent by —

originally. been . con-.

” vieted of the same murder charge i in July 1954; however,

the original. conviction had~been reversed by the. United

States: District Court. for the Middle District of Tennessee’.

on Jatiuary 6,.1964 in a habeas | corpus proceeding on the- - :

' grounds of tardy appointment of counsel. Stubbs v. Bomar

cm Action 3585, M. D. Tenn.) ee

~*~ Pale

The crime of which aspellent Stubbs was convicted ‘in

rm Tennessee was ‘the murder of Mrs. Alex Holm on June

Il, 1954. At the 1964 retrial, Burl ‘A. Holm testified that

. lis parents, Alex and ‘Buby Holm, were — their car

aS on the firearms charge, the. Sen- cy ot

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By ie rc theit ca in wine Horcingh sVentiqnsnés theiy yon

- y tination was Providence, Rhode Island; arid from that

point, they were to fly to Sweden). , They met Stubbs at

a roadside park between Rutledge and Rogersville, ‘Ten.

“nessee, where they had stopped Aor a picnic’ lunch. ” .

Stubbs testified that he had been discharged from Texas

State Penitentiary i in June, 1954 and that he was without

money, and was. hitehhiking through the South. He had

: .. _ been given, a gun by a friend who had. beepa fellow inmate

+ ~ . in prison, and: had this ‘gun in his possession when he

-.’ met Mr. and ‘Mrs: Holm. “Ager their refusal to give him

+". a lift, he~forced them at gun point to get into the back «

“geat of their. car: . With, the gun in-his hand at intervals

* pointing. inté Mrs. .Holm’s face or on the. front seat,

Stubbs drove the car through Rogersyille, Kingsport and

Blountville, Tennessee. Stubbs testified cays hear Bsa

: Tentiagsee :

“Tt seems awful. ‘iteng but jeu vibes just seemed ©

to ‘be awful still and I remember a tree and it just -

: seemed to come up just like that in a clear focus, but —

g reddish. haze. I mean there was, no’ pain or’

thing . . . I felt a sharp pain that seemed to start

jn my” head ‘and go all the way down through me and

reached. 7 with both hands and heard this loud

‘roar, bang .:. . Stuff started down my face and down

- my _ shirt sia all that I could-think of that he has’

. + got the gun . . . I just went outside through, the car

door {onto the highway). ae

that, Stubbs. ran away to the woods, “everything :

wen i psn and he. awoke after sundown: .A passing —

driver, Mr. Bernie Webb® gave him a lift and.they were —

stopped at a ‘roadblock. - Mr. Webb suggested to officers

at the roadblock: ‘that Stubbs ° be investigated: He was

* 9 Oe. Webb testified that he had picked Stubbs" up on the high-

way, ‘that his Shitt was — and that they were Rei by the

roadblock. . <:

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_faken to Bristol Jail in handcuffs, then escorted within an.»

hour to the hospital where several. head wounds were _

. Stubbs went on to state that he was taken to Mr dm oe

. room in the hospital and that a man (whom hg did not

Tecognize'as Holm at the tinie) pointed.to him and said: ~ ‘e

“[T]hat is the-one.” He denied knowledge that\Mrs,:

. Holm was dead, claiming that he was hit on tlie head and

that he did not shoot Mrs. Holm. ha Ee Pele eg

_. Captain Frank Williamson of the Tennessee Highway -

:’ Patrol testified that on June 11, 1954 he received: informa-

tion about a wrecked car néar Blountville: He went to

the scene and found an old model Ford with blood’ inside,

. and thé deor open: 4A ‘woman, had been shot anda man...

. Sergeant Seahorn of. the Tennessee Highway: Patrol *

testified that after the shooting they were checking cars |

at a highway roadblock and that- when Mr. Webb and ‘ap-

pellant Stubbs droye,up, Stubbs was arrested. Sergeant

Seahorn told Stpbbs that he was under arrest in connec- _

_ tion with a murder. At the time, appellant had.blood on @.

the frofit of his shirt and his clothes. were torn.. Heex-

_Plained this blood by saying that he had been fishing and _

‘had fallen off/a rock cliff. He-was ‘searched, and an empty

bullet. shell and knife were found. Sergeant Seahorn fur-.

"ther testified that Stubbs was taken to City Jail and then

to the hospital room of Alex Holm, where (in the presence. © -

-of several other police officers) Holm pointed at Stubbs

and said “*~T]hat is the man that killed my wife and shot |

me’’, tas ; : es : ;

Their testimony was corroborated by,Captai William-

_ Sof and Sergeant H. P.-Montgomery of the Tennessee

Highway Patrol. Sergeant Montgomery further said that

at the time that Holm identified Stubbs, there was ample

light in the room. © - :

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. - ‘Franklin pore ee = attended Alex’ Holm i in the |

ey Emergency Room of Memorial Hospital, testified that two

. bullets had entered Mr. Holm’s face, one. lodging in the.

_ neck, and the. other in the nasal passage; both bullets were

removed. Despite this injury and the discomfort, Mr...

ety ‘Holm’s faculties. were ‘intact and his eyes were ‘good; he -

had brought: his glasses with him to the hospital. He iden. -

_ tified Stubbs as his assailant. Dr. Charles Harkrader, Jr.-

téstified to » the same éffect. as to Holm’s conscious and

— state. < *

The testimorty of Alex Holm, j given at Stubbs’ 1954 trial, 4

was. read into the transcript at the 1964 trial,. over coun-

. Sel’s objections; Mr. Holm had in the meantime become a

permanent resident of Sweden. ‘ Holm had identified

---” Stubbs in, -court, and had testified that Stubbs had forced.

- . him and his wife into their car at gunpoint and threatened .

to kill them. : Stubbs drove the car, keeping his gun in his:

~ . Jap. pointed’ towards’ them. Mr., and - -Mrs. Holm were :

carrying $1,400.00 in ‘traveler’ S checks and caSh. Stubbs

began shooting when they were slightly east. of Blount-

_ ville; twice at Holm and onee at Mrs. Holm. Holm seized -

the gun dfter Stubbs: had begun to. shoot,’ another shot

_ went off, and Holm hit Stubbs on the head with the gun -

~ 3 or 4 times. Mrs. Holm’s body slumped over. and Stubbs

got out of the car and ran. away.

. » : . =. en

Respondent commenced the instant procvediag in the .

Western District of New York by ‘means of a petition for |

a.writ of habeas corpus. His petition contained ten claims,

. nine of them directed toward his Monroe County trial and

- ‘eonvietion. Respondent * s tenth claim was that the 1964 Ten-

nessee conviction as“unconstitutionally obtained and as

such should not kage been made the basis for. increased:

‘ punishnient. . Respondent alleged that the 1964 Tennessee °

conviction had been obtained. in violation of. nae sarap :

Amendment — of confrontation. | ,

York Courts, the: District Court denied all of respondent’s :

daims on the merits (see Appendix D)..On October 7, 1969

the Court of .Appeals- for | e Second Circuit.granted re-. .

spondent a certificate of pri ablhepasn leave to appeal in: ©"

forma pauperis and assignment of counsel. The Court lim-

‘ ited the issue on appeal to the sore esac of the inet .

Tennessee convict

; “On April 19, 1971, the Court below rendered : itt decision,

Teversing the decision ‘of the United States District Court. P

~The Court held that respondent had been deprived of‘his

tight of confrontation at the Tennessee retrial for murder, —

because the testimony, of a witness. proven to be residing in

. Sweden was read into the record,‘and because counsel at the -

first trial had been tardily appointed and had not attempted .

to establish that after Stubbs had kidnapped the Holms at

gunpoint, : ithey had. made him weleqmne ‘1 as a ——: Sse

8a).° °

The court £ further } held that antec cecmeaiiad had} ia

self testified at the retrial that he had forced Mr. and Mrs.

sHolm into a car at gunpoint and compelled them to drive

to the spot where the shooting occurred, the harmless error

‘doctrine did not apply because ‘there was an absence of tes-~.

. timony on the part of Holm as to whether the kidnapper

had become their ‘‘guest”’, and thus a reasonable hypothesis

_ a8 to the ee could _ be conceived (8a).

°e

- Reasons for Allowance of Writ

1. The ‘ahcinien below constitutes a significant departure-

: from = Prior reams of this Court.

i A

| The court: helow, citing this Court’ Ss ‘decisién ; in Barber

¥.. Page, 390 U. 8. 719 , (1968), held that “ [absence from .

Numbers in parentheses refer to the appendix: herein.

ae.

8" & :

the’ continental United States i is not. per se a. sufficient rea-

son to broaden the exception to the Confrontation Clause

allowing the admission of prior testimony of a presently

-~ mnavailable witness’? ' (7a). In so ruling, the court mis-

ci apprehended the rationale in Barber, ‘which dealt with the .

issue-of whether a defendant’s right of confrontation was

denied at his trial bs the reading of: -préeliminary hearing i

testimony of a witness who was then imprisoned in -an- .

other State. Since the absent witness was incarcerated i in

a federal prison in Texas, 225 miles from the’ trial court;

it is clear that this Court’s decision was directed toward

a situation where it was legally and ereeaty possible to

= produce the missing witness.

‘Thus, this Court observed that iolaaeal eae be-

' tween the States themselves and the federal government

_ had largely diminished the theory that absence from a

_ jurisdictidn. was a. ground for dispensing with: confronta-

tion because the process of a trial tourt could not go be -

yond its territorial limits.. It was also noted that, in the i

case of prospective witnesses in federal custody, the fed-

eral courts had the power to issue writs of habeas corpus

ad teéstificandum at the request of state prosecutorial at-

“thorities, and that the United States Bureau of Prisons per-

mitted federal prisoners to testify in state court criminal

proceedings pursyant to writs of habeas a: ad test

ficandum issued out of state courts.

By contrast, the prior recorded testimony of the witness

in the case at-bar was that of an elderly man of Swedish

‘nationality who had returned to and become a permanent —

resident ‘of Sweden and, therefore, was not available to*

Tennessee for respondent’s retrial for first degree murder.

Respondent’s positjpn is that this fact alone invalidates his.

Tennessee conviction and precludes its use as a predicate -

for finding him a second felony offender after conviction .§

in Monroe County, New York, of first degree assault and

,possession’ of a firearm. This situation is totally unlike

Barber, but similar to several other recent decisions where ©

*..

gwitness was demonstrated to be living on a ‘foreign con-

; tinent at the-time of trial.

oh People v. Benjamin, 83 Cal. ‘Rptr. 764 (Ct. of App.,

1970), for example, defendant claimed at his trial for rob-

- bery in the second degree, thatthe introduction of pre-

liminary hearing testimony of a missing witness violated °

his right of confrontation. The prosecution. established os

that it had been advised bya legal officer of the Marine .

' Corps -that the missing witness was on military duty in

"> Vietnam and-rould be unavailable for trial.: On the basis

of this evidence, the Court. of Appeals ‘upheld the trial .

jndge’s finding that the witness was unavajlable as a mat-

ter of law and that reasonable diligence w

caused him to appear as a witness. Accordingly, the ad-

mission, of the witness’ pre- -trial testimony was found to.

be proper.

And in People v. Ashford, 71 Cal. Rot. 619 (Ct. of App.

1968), the missing witness had testified against defendant.

ina retrial for robbery in the second degre¢b, and been

cross-examined at a preliminary hearing: and prior trial.

At the time of defendant’s secdnd trial, th missing wit.

ness was at a convention in Florida; and as. thereafter

planning to travel in the Caribbean and/in the western

. United States. While the Court noted that the’ better prac-

- tice would have been to adjourn. the second trial until the

missing witness ‘returned to California, it upheld defend- .

- ant’s conviction on the ground that he was ‘not deprived

of his full Sixth Amendment right of confrontation, but

only - that aspect of the right; -of confrontation which en-

titled him to have,the trier of fact observe the witness’

demeanor while being subjected to interrogation.

In Goldwasser v. Brown, 417 F. 2d 1169 (D. C. Cir. 1969),

a former English teacher sought review of a proceeding in |

i which he was discharged from civilian service with the Air

Force for having made unauthorized statements to his stu-

dents. ° _ The eae. were ee military officers. who

uld -not have.

| 10

had Saas idsicneil to their native countries at the

time the disciplinary hearing took place. Notwithstanding

plaintiff’s argument that the hearing, was defective because ‘-

these witnesses should have been produced by the Air Force

see upon his request, ‘the Court stated that plaintiff’s access

to these witnesses prior to their departure from the United ~:

States prevented, plaintiff from claiming unfairnéss at the

hearing amounting to a vjolation of the Constitution. ‘The

Court noted that the Civil Service Commission did not have

- subpoena power to compel the attendance of witnesses, and —

‘ further noted that these foreign students were not. under ..

the control of the Air Force. aCe eee

Cases which have found that. dné diligence should have ~ ,

.” been exercised to:obtain the presence of an absent witness, _

haye-involved situations where the witness might have been

in the jurisdiction (Holman v. Washington, 364 F. 2d 618

[5th Cir, 1966]; Wilson v. Bowie, 408 F. 2d 1105 [9th Cir. -

1969] ; and Government of Virgin Islands v. Aquino, 378:

F. 2d 540, 551 [3rd Cir. 1967]). In Aquino, for example, -

the witness was a stewardess on a areas freighter. -

aa . The Court there held:

‘‘So far as the record. swe therefore, the eel

ant might have been Tesiding éohtinnously i in the Virgin _

‘ Islands ever since. the preliminary hearing was held.

' She might have been aboard a vessel which was in St.

.. Thomas at the time of trial. In these circumstances it

' cannot be said that the prosecution satisfactorily estab-

lished the burden which rested on jt to show that she

was unavailable at the time of trial.’’ ( Emphasis

"In the inbtant ease the ‘State of Tennessee ascertained

the location of the missing witness and introduced testi-

‘mony as to his whereabouts. . Having established that the

missing witness’ was permanently residing in Ekskogen,

Sweden, there was little more the prosecution could have

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done in view of the great distance between Sweden and the _ —

_ place of trial (approximately 4,000 miles), the expense of —

‘travel from such. a distance, and. the witness’ immunity

3 ‘from any form of process issued by the State of Tennessee.

The Supréme Court of Tennessee, in affirming the Tennes-

"gee conviction (Stubbs v. State, 216. Tenn. — 393 val 5

150), held at 154: he

“The Uniform Law to. Semis ‘Aviendaass of Wit- he

nesses, T.C.A. §40-2429 et seq., is limited to apply to

_ any state; territory of the United States or District

_ of Columbia: The Criminal Court of Sullivan County,

_ who fried Stubbs, had noffective ot stir proc. “ees

L ess in Kkskogen, Sweden. es : a

. ‘The Court réferred to 15 A. L.R. at page 517 for the =

“that: | °

- “Tt seems lovisal to hold that, if death ‘permits the

- reproduction of the testimo the witness, his

absence beyond the jurisdiction of thé court, so that .

- his ‘presence cannot be secured at the trial, would re-

quire the same result. The courts have quite guseraliy

: — such ruling. ’’ a —_————

—= ——- aes

"Tt is ae. that no ‘due diligence” rule can properly be,

a here. | ,

| B. :

The Court below alzo held that ‘tardy appointment of

counsel ‘at respondent’s first trial deprived respondent of __

his right of confrontation, in clear contravention of. this

Court’s holding in Chambers v. Maroney, 399. U.S. 42°

_ (1970), that tardy appointment of counsel .per se neither

requires reversal of every conviction nor an evidentiary

hearing. to determine whether the right to counsel has

_ been violated. This Court also poted : ;

' “No charge is made that [counsel] was incompetent

OF * inexperienced, rather the claim is that his appear

12°

ance for petitioner was so belated that his could not

have furnished effective legal assistance at’ the’ second

. trial. - (399 U. - at 53.)

k the instant. case, respondent’s first . tial had been .

vacated by the United States District Court for the Middle _

- District of Tennessee* _solély on’ the grounds that there —

was insufficient time to prepare a defense. *. Respondent:

was represented by three members of the Bar and the re. |

corded testimony read into the 1964 trial transcript indi:

eates that these attorrieys handled the examination of the

complaining witnes® capably. . ee

‘> Mr. Meinturff, one of the three Mitel nan numerons .

objections during the’course of Mr. Holm’s testimony. “The

cross-examination was handled by a co-counsel, Mr. Taylor,

who attempted to show that respondent had ‘no intention —

~ Of killing anyone; Mr. Taylor questioned Alex Holm closely

as to whether defendant could have shot both him. and his _

wife and taken their car when they first encountered each |

other at the pienic site. Counsel further attempted to

- establish that respondent had told Holm and his wife that

all he wanted was. a ride to Bristol. :

Thus, it is plain on the record that apanie s 1954

_ counsel did in fact effectively cross-examine Alex Holm.

‘ Indeed,/the suggestions of respondent’s later attorneys at

his retrial as-to how = would have handled the cross-

examination do not significantly improve upon the earlier

trial techniques used. M@™ of the. suggestions involved

_ Merely minor points, except that counsel would have asked |

- Mr. Holm whether he carried insurance on. his wife’s life.

/Phis kind of attempt to impugn Mr. “Holm could have been

* “ ntilized by his: 1954 counsel, as it would have taken no

preparation time; however, it is proba hat as a matter —

-of ‘strategy, Mr. MeInturff and Mr. Taylor did not do so

” becaiise mis felt it would further raeneree the jury. Mr.

i v. Sone — action (3585,. MOD. Tenn).

ag ye,

2 ee ©

BD line of questioning would not, of course, haye needed any

ee * : , 9g ;

ere: °,

Holm had himself eis shot twice j in the face and an siteetiot ; i ae

~ to insult him would = have underlined .his —_—

tragedy.

_- The courts below scales that: the crons-cininittintion ,

was defective because counsel had failed to ask Mr. Holm ,:

whether the kidnapper had been made ‘<welcome’’ once

the Holms- grew better acquainted. with him (8a). This ©

preparation time and thus the tardy appointment of coun-

' sel is irrelevant in assessing cross-examination ; moreover,’

such questioning would also have been ° ‘rejected : by trial:

‘ counsel as a matter of strategy, since it would h

peared to the jury to be sarcastic. As a |

cisions, the attorney must\be the. manager of the lawsuit.

Williams-v. Beto, 354 F. 2d 698 (5th Cir. 1965); Nelson v.

People: of the State of California, 346 F. 2d 73, 81 (9th Cir. ,

1965), cert. denied 382 U.S. a

__ In addition to the” opportunity to cross-examine, “the ~

other important benefits included in the right to ‘conffonta-

«tion were ‘also. preserved in respondent’s 1954 trial. As

_ summarized in this Court’s decision in California v: Green, .

399 U.S. 149 (1970), the defendant must have an oppor-

tunity to confront the witness personally in order to test.

~ his recollection; sift his conscience; compel ‘him to. stand

. face to face with the jury so that they can judge his de-

meanor; and .to compel him. to testify under oath’ with

knowledge of the penalty for perjury., All these factors

were present when Holm originally testified:

This Court recently indicated in ‘Dutton v. Evans, —

U.S. — , 91 S. Ct..210, 220 (1970) :

‘<The decisions of this Court made it ane that the

mission of the Confrontation Clause is to advance a’

". practical concern for the accuracy of the truth de-

_ termining process in criminal trials by assuring that —

‘the trier of fact thas] a mecca basis for evaluat-

ing the truth of his prior statement.’ California y,°

‘ Green, 399 U.-S, at 161, 90 S. Ct..at 1936.’ Holm

_Such accuracy is assured in the case at bar. Justice Har. th

lan’s concurring opinion in Dutton (91 S. Ct. at 223), also that t

_ indicated that California v. Green should~not be inter. - whoth

preted so as to require the prosecutor to produce avail. course

able witnesses in preference to other types of proof... wet +6

"Thus, no bdsis.remains for the exclusion of Holm’s tes- ~ Seeon

timony from the 1964 retrial. = =§ ee : theory

} % . “as F tion of

2. The decision below conflicts with the law in. four other ‘have s

a iia adie ; “ he

. In ruling that respondent’s own testimony admitting the esis tl]

_ gun-point kidnapping of Mr. and. Mrs. Holm, was insuffi- sible t

cient in itself to sustain his ‘Tennessee conviction because Holms

. another hypothesis as to the shooting might be conceived, refuses

the court below in effe¢t eliminated ‘the harmless errer rule had n

exeept where a federal court finds that the tial: jury could —§ destin

have reached no other conclusion’ but guilt—a more rigor- | Holms

ous standard than is applied on direct appeal. This inter- | the ca}

_ pretation*is im conflict with the law of four other circuits; § Mrs. E

which, have held unequivocally that even where 4. prosecu- The fi

tion is based upon circumstantial evidence (rather than - own, tes

defendant’s own testimony, as. here), it is not necessary §f along—

to preclude every reasonable hypothesis ¢xcept guilt in. § \ The

. order to uphold @ conviction. United States v, Boyle, 402 had ad

F. 2d 757 (3rd Cir. 1968), cert..denied 394 US. 934; United sist

_. States v. Chappell;.353 F. 2d.83 (4th Cir. 1965); United ~ (393 §,

States v. Lucemberg, 374 F. 2d 241 (6th Cir. 1967) ; Bailey . the Ney

v. United States, 410 F. 2d 1209 (10th. Cir. 1969), cert. -

‘denied sub nom. Freeman v. United States, 396 U.S. 933;

Early v. United States, 394 F. 24 117 (10th Cir. 1963); »

cert..déenied 393 U.S. 1003; Golubin v. United States, 393

F. 24 590 (10th Cir. 1968), cert. denied 393 U.S. 831.

"It is important to note that Mr. Holm’s testimony was

cumulative on the question of. Stubbs’ identity,‘ the owner-

4 Oy: : i . “m

lm had been murdered like his wife, rather than shot -

ice in the face, Stubbs’ own testimony alone could clearly

ve supported the'verdict. However, the court below held

at the absence of testimony on the part of Holm as to — |

ether Stubbs had ““gained their: sympathy during the

urse of the trip and: in éffect became their guest’”’. was

t ‘‘harmless beyond a reasonable doubt’”’ (8a). The é

cond Cirewit’s rationale was that since ‘the “guest”

ory was ‘‘the core of Stubbs’ defense’’,* cross-examina-

n of Holm on this point was ‘‘central’’ bécause ‘it might.

ve supported Stybbs’ claim,

Analysis of Stubbs’ te timony alone renders the hypoth- ; ee

s that his. victims made \him welconie wholly impos-

le to support. Despite his attempts to persuade the

Ims to allow-him to ride with them, he was categorically

used—until he threatened them with his. gun. Stubbs

1 no job prospécts and no money arid no «particular

tination to which he merely needed. transpo

Ims’ suggestion that he ‘‘put his ‘gun on the seat [of

ear}’’ (8a) was an alternative to his ‘pointing it. into

s. Holm?s face rather than an expression of friendship.

e final refutation of the “‘guest’’ theory was Stubbs’ |

1 testimony that he-was struck on the head as they drove ©

ng—hardly the act of a host. _ hae

he Tennessee Supreme Court pointed out: that Stubbs

admitted’that ‘“‘he foreéd Axel Holm and his wife at:

‘ol point to get into the back seat of their automobile”’

3S. W. 2d-at 155). Both the Tennessee shooting and

New York conviction for assault in the first degree and

session of a firearm, involved crimes of brutal violence.

The trial transcript, however, indicates that the “core” of the \

\y “.

drove along, that he heard a roar, and‘then he felt a painand =“

nse was that Stubbs had suddenly been struck on the head as

away.

rtation.. The .

.As noted by J udge Moore in the disseating opayien below ,

s/ Qa):

‘‘Here is _presented an “extraordinary example ‘-_

1 ‘justice’ dispensed by the federal courts.. Stubbs, the

-‘ appellant, released from a Texas penitentiary in Stine ie

1954, a few days later kidnapped at gunpoint in Ten-

. _ nessee a Mr. and Mrs. Holm and forced them to accom. *

. pany him in their car.. While on the road he murdered

‘Mrs. Holm apparently ‘in cold blood’ and attempted

‘ to murder Mr. Holm, wounding: him twice. Stubbs was

apprehended. shortly thereafter at a roadblock. He

tried to explain the blood on his clothing by attributing -

it' to an accident while fishing. : ‘Stubbs was taken to-

the hospital te which Holm had been taken. There, in

the presence of police officers and a doctor, Holm ’

identified Stubbs as ‘the man that kien my wife ane

> shot me.’ - 7 bi

3 udge Moore also slink:

_ “Stubbs is not seeking relief from his ities con-

- viction as such but simply from its use to support 5

‘longer sentence for his subsequent New York convic- . -

tion.: The attack now made on the Tennessee convic-

tion is purely collateral. ot

It is respectfully urged that, i in requiring = hide to.

exclude every reasonable hypothesis except guilt in order. ‘

: : _to show the applicability of harmless error, the court

“low not only contravened ‘precedent in other circuits bi

- has also held the. State to such a stringent standard that *

virtually any trial error would mandate invalidation of

the State conviction. Thus, the harmless error doctrine,

Harrinaton v. California, 395 U.S. 250 (1960), “which is ©

. ‘designed to: avoid the necessity for setting aside’ convic-, *

tions for small errors or defects that have little likelihood.

of having changed the trial Bsa aed would be Saw: .

undermined, ;

ie . -

Y - . ‘ Se

1 ’ * 5 \

ouiciaial

__For the foregoing reason, this peition for writ of -

veetenert should We granted: ak : oot

Dated New York, New York, August zg.

, 7

Respectfully submitted,

Louis Zz ; ica

Attorney General of the |

State. of New York

Attorney for Pétitioner

‘Sacor _A. Himsnowrrz’ es

ee Assistant Attorney General :

Aas! t,.Manovs ._ * ,

Assistant Attorney. General

of Connect.

‘ter 4

—_

. . .

é —

. ee ~

os .

7 :

la , Se -

- Appendix A—Denial of oe i Rehearing.

UNITED STATES COURT OF APPEALS

y acSzconp Circurr

: ye. .

- Usrrep Stars ¢ ex = Wasa c Srvsss; v

: e

‘Vincent R. Maircues, Warden, . Attica State Prisan,-

| "Attica, New York, _ NN

AL petition for. a rehearing having been filed herein -by

eounsel. for the appellee, .

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied. .

[

7 ‘Henry J. FRIENDLY © ,

; | : Artin M. ApaMs

Cireuit Judges -

LEONARD r. Moore, US.C.J.

dissents.

May 19, ‘1971.

Ralator- Appellant,

Respondent-Appele |

Ga.

me)

"Appendix B—Denial of Petition of Rehearing In Bane |

34449 , as

_ UNITED states COURT OF APPEALS,

i " Szcorp Cmoors .

| Unrrep — ex rel. Wazax ( C. Srvsss,

Relator-Appellant,

i" | | |

Vincent R. Maxovir: “Warden, Attica State Prison,

ae New. York,

Respondent-Appelle.

A petition for a rehearing containing a suggestion. that

the action be reheard in banc having been filed herein by

counsel for the appellee and. no active circuit judge having

requested that a vote be taken on said suggestion, |

ts aaa consideration thereof, it is

Ordered that said petition be and it hereby i is denied.

Henry J. Farexpty “

; Chief Judge .

May 19, 1971. |

Appendix C—Decision of the United States Court

_ of Appeals for the Second Circuit.

UNITED! STATES COURT OF APPEALS

| For THE SECOND Cmcurr

_» ' No. 126—September Term, 1970. °°

(Argued October 26, 1970 Decided April 19, 1971.) ‘

Docket No. 34449 |

— ee

» on

Untrep SraTes oF AMERICA ex rel: WiuaM C. Srusss, - -

| a ‘Petitioner-Appellant, 7

—agdinst— + | ;

VINCENT R. Mancusi, Warden of

Attica Corréstional Facility, “

Respondent-Appellee.

Before: | :

.: Moore, FrieNDLy and ApamMs,* | ,

|. ee at | Circuit Judges.

_ Appeal from denial of petition for habeas corpus by the

District Court. for the Western ®istrict of New York,

Harold P. Burke, Judge, challenging sentence imposed as

_ Second felony. offender. Sea we 8 —_

Reversed.

e . e

* United States Circuit Judge of the Court-of Appeals for the

Third Circuit, sitting by designation. | |

Appian C+Decision of the United States Court y

Appeals for the Second Circuit.

| Bruce K. CARPENTER, ‘Dunkirk, New York -

(Woodin & Carpenter, Dunkirk, New York,

of counsel), for Petitioner-Appellant.

Marta L. Makcus, Assistant Attorney General,

New York, New York (Louis J. Lefkowitz,.

hig .Attorney General of the State of New York,

New York and: Samuel Hirshowitz, First

Assistant Attorney General; New York, New ~~

eis of counsel), for Respondent-Appellee.

Anans, Circuit Jud ger

Relator Stubbs was “Se etea in Mvaroe County,. New .

~ York i in 1966 for first: degree. assault and possession of a

firearm. The County Court considered a prior convictign

of murder obtained against Stubbs in Tennessee, found him

to be a second felony offender, and sentenced him to con-

secutive terms of imprisonment totalling thirty-two to

thirty-four years.’ Stubbs here challenges his sentence,’

alleging that his prior felony conviction in Tennessee was

constitutionally invalid. The Honorable Harold P. Burke, ©

District Judge of the District Court for the Western Dis-.

trict of New York, denied Stubbs’ ‘application fora —

oo habeas corpus, and relator appealed.

1 Under former New York Penal Law, §§ 241, 1897, [present

New York Penal Law §§ 120.10, 265.05 (McKinney 1967) ], Stubbs -

could have been sentenced to a maximum of seventeen years as a

first felony offender on these charges. The sentence was increased

under the authority of formet Penal Law § 1941 (compare present

§ 70.10). Stubbs was also convicted of the felony. of breaking

_ and entering in Texas in 1953. As far as thé record in the present

- case reveals, the 1953 conviction remains available as a_ predicate

for increased punishment under § 1941. . Present Penal Law § 70.10

would not govérn resentencing’ because of the effective date ex- —

pressed in § 5.05. Cf. ata v. Swenson, 435 F.2d - (8th

~ Cir. es

| 5a | .

_ Appendix C—Decision of the United. States,Court of

a Appeals for the Second Circuit. ° . |

Stubbs was first convicted of a vicious murder in Ten- ~

nessee in 1954. This conviction was vacated in 1964 when

. the Honorable William E. Miller, United States District

- Court for the Middle District of Tennessee, found Stubbs °

to have been denied, because of late’ appointment, the ef-,

fective assistance of counsel. Stubbs v. Bomar; Civil Action

3985 (M.D. Tenn., filed January. 6, 1964).- At retrial, the

_prosecution’s primary witness did not appear, but his tes-

timony from the first-trial was read over defense objec.

_ tions, and Stubbs was convicted.-“This conviction was.

upheld: by the Supreme Court of Tennessee. Stubbs v.

State, 216 Tenn. 567 (1965).

The critical issue before us is’ whether. relator’s 1964

Tennessee conviction was obtained in violation of his right

—under the Sixth Amendment to the Constitution—to be

confronted with the witnesses against him, and thus was an

improper predicate for increased punishment.?

The facts underlying the Tennessee conviction are as

follows: Mr. and Mrs. Holm were driving. through Tennes-

see on their way from Texas. to. Bhode Island’ for. an

eventual journey to Sweden. Stubbs asked Mr. and Mrs.

Holm at a roadside park for a ride, but was refused. He

then forced them at gunpoint to permit him to drive their

car while the Holms rode in the back seat. Stubbs claimed _

that when they were near Bristol, Tennessee, he was sud-_

denly struck on the head and he heard a loud bang, the car

hit a tree and Stubbs then fled. The police were called to

‘Investigate the wrecked car, and they found Mrs. Holm

| dead by a gunshot wound, and Mr. Holm shot twice in the

face. Stubbs was soon apprehended in a police road-block.

From his hospital bed, Mr: Holm identified Stubbs as the

man who shot him and his wife. Three days before his

trial, three attorneys were appointed to defend Stubbs,

*See Burgeit v. Texas, 389° U:S. 109 (1967):

7 timony was admitted over objection. The propriety of the

- Appendiz C C—Decision of the United States Court of.

Appeals for the Second Circuit. |

and they requested and were refused a contiriuance to ; pre-

pare the defense. At trial, Mr. Holm was the State’s pri-

mary witness, and Stubbs was convicted. |

- By the timé Sof the “1964 retrial, SF Hoar had’ — 7

~-@ permanent resident of Sweden, but had not relinquished .

his American citizenship. ‘No effort was made by ‘the state

to obtain Holm’s attendance at this trial. Instead, Holm’s

son: was brought from Texas tc testify that his father was

: presently residing in Sweden whereupon Holmi’s. prior tes-

admission of that evidence, in light of Barber v. Page, 39

. US... 719. (1968) and California v. Green, 399 US. 149 mF

- 1970), i is here in question.‘ | ,

_ As noted by the Supreme Court in Green, ‘the urtipaler

vice which gave impetus to the [Confrontation Clause] was

- the practice-of trying defendants on ‘evidence’ which con- |

‘sisted solely of ex parte affidavits or depositions ‘secured _

‘by the examining magistrates, thus denying the defendant

the opportunity to challenge his accuser in a face-to-face —

encounter in front of the trier of fact.’’? 399 U.S. at 156.

A traditional exception to the confrontation requirement

-has been the introduction of testimony of a witness who is —

now unavailable, but who previously testified subject to -

cross-examination at judicial proceedings against the same

' defendant.. E.g., Mattox v. United States, 156 U.S. 237

(1895). While the scope of the Confrontation Clause is not

coextensive with the rules.of hearsay and their exceptions,’ .

® See generally 5 Wigmore; Evidence, §§ 1396, 1404 (3d ed.

1940); Note, ileal and the: Hearsay Rule, 75 Yale LJ.

1434 (1966).

*In Berger : y. California, 393 U.S. 314 (1969), the’ Supreme

Court directed that Barber v. Page should “be given .fuilly -retro-

active application. ‘

_* California v. Greén, supra, at 155-156..

Appendix C—Decision of the United States Court of

Appeals for the Second Circutt.

“necessity’™ i is a factor common to both that may justify 4

the use of prior recorded testimony in limited instances

_ of genuine unavailability. The test for such use ig whether

the prosecutional authorities have made a good-faith ef- —

fort to obtain [the“witness’} presence at trial.’ Barber v.-—

Page, supra at 725. No such effort was made here, and

Holm’s testimeny was improperly admitted into evidence.

-. Where there ij is no showing that a witness beyond the effec-

tive reach of a court’s subpoena will refuse to return volun-

tarily to testify if requested, the prosecution may not in-

troduce prior testimony without demonstrating a reason-.

able effort to secure his presence. Cf. Virgin Islands v.

’ Aquino, 378°F.2d 540 (3rd Cir. 1967) ;-Owens v.. Eyman,

434 F.2d Stat ‘Cir. 1970). Absence from the conti-

‘nental Uni States is not per se a sufficient reason to’

broaden the eXception to the Confrontation Clause allow-

ing the admission of prior testimony of a presently .un-

available witness. For although there is a much ‘greater .

chance that it will not be possible to bring before the court

a witness residing abroad, ‘‘ ‘the possibility of “a refusal

is not the equivalent of asking and receiving a rebuff.’ ”.

Barber v. . Page, supra, at 724, quoting with approval Judge

. Aldrich’s dissent in the Court of Appeals, 381 F.2d 479, 481

- (10th Cir. 1967). |

New York urges that even if Hoim’s testimony was

erroneously admitted in the 1964 trial,.such error was’: -

harmless beyond a reasonable doubt within the meaning

of Chapman v. California, 386 U.S. 18 (1967).’ Relator

answers that Judge Miller found | Stubbs did not have

effective assistance ‘of counsel -at his 1954 trial, so that

his right of cross-examination may not have been satisfied ,

* See California v. Green, supra, at 167, footnote 16.

™ See also, Note, Harmless-Constitutional Error: A Reappraisal,

83 ‘ima L. Rev. 814 eA).

Appendix C—Decision of the United States Os of

, Appeals for the Second Circuit. °

even initially. Judge Miller’s decision, however, even if

it were binding on New York, would not establish the in-

effectiveness of the crdéss-examination of Holm, but only

the prejudice to the’ totality of defense preparation from

_ late appointment of counsel: , a

Nevertheless, it is clear as Stubbs’ 1964 eounsel recog- -

_ mized that Holm was not questioned regarding the core

of Stubbs’ ‘defense—namely, that while Stubbs originally

. forced himself on the Holms, he — their sympathy

during the course of the trip an effect became their -

guest. This claim was significant because even if Stubbs -

fired his pistol accidentally (he denied firing at all), he “4

might still be found guilty of felony murder unless the

felony of kidnapping had ended. Stubbs’ story was given

some plausibility by his testimony. that he forced himself

- on the Holms from desperation and hunger; they made him

' welcome when he explained his motivation; Mrs. Holm

suggested he put his gun on the seat to avoid it being seen

while driving through a town; and they drove past a police-

man without the Holms. making any outcry. While all of —

the above may also be explained by the Holms’ fear of

_ Stubbs, we cannot declare the absence of any examination .

- of Holm—the only eye-witness to the alleged crime—on this

' point to.be harmless beyond a reasonable doubt.. Compare .

Burgett v. Texas, supra, at 115 with United States ex rel.

Moore v. Follette, 425 F.2d 925 (2nd Cir. 1970). Whether

the test is. one of overwhelming evidence or of untainted

evidencé,* the error of admitting Holm’s testimony at

- Stubbs’ second trial was central to Stubbs oe

rather than harmless to his case.

The dissent makes an appealing 6 ease for bsing the ten

nessee conviction to aiiginent on the New York ee too

* See 83 Harv. L. Rev. at, 817-820.

- \

Appendiz C—Decision of the United States Court of

pers Appeals forthe Second Circuit. |

-It essentially employs the ‘*bad man’’ approach: However,

it fails to cite any cases to support such position and also .

fails to demonstrate where the cases ‘relied upon here are —

‘. either unearned or inappropriate. po ec

Moore, .Circuit Judge (dissenting) : oe

_ _ Here is presented an extraordinary example of, ‘‘justice’’,

- dispensed ~by. the federal courts. Stubbs, the appellant,

‘teleased from a Texas penitentiary ig June 1954, a‘ few

days later kidnapped ‘at. gunpoint in Tennessee a Mr. .

and Mrs. Holm and forced them to ie Ho him in their *

ear. While on the road he murdered Mrs. lolm apparently . \

“in cold blood’’ and attempted to mur er Mr. Holm, ~

wounding him twice, Stubbs -was. apprehended shortly.

thereafter at a roadblock. He tried to explain the blood

‘on his clothing bWattributing it to an accident while fish- :

ing. Stubbs was taken to the hospital to which Holm had

been taken. There, in the presence of police officers and.a

doctor, Holm identified Stubbs as ‘‘the man that killed my

wife and shot me.”? tea 4 ! te Fe

_ ‘Stubbs was indicted ia.the Criminal Court in Tennessee

, on July 8, 1954 and arraigned the next day, July 9,.1954.

The Trial Judge immediately appointed three members :£

“of the County Bar to represent Stubbs. Although counsel - .

moved for a continuance for additional time -to prepare a

defense (a practice not unusual for defense. counsel), the

trial was set for, and proceeded on, July 12, 1954.

_.. In addition to other witnesses, Holm testified to the facts®

of the kidnapping, the murder of his wife and his own —

wounding. There is no indication in the record that Stubbs’ -

_ Holm. The jury convicted Stubbs or four indictments,

NGO) i ae

Appendix C—Decision ofthe United States Court. a

" Mppeals for the Second Circuit. =

indie in the first depree, assault with intent to. siniesae’

and two counts of kidnapping: He’ was sentenced to con- ~

current terms. of 99 years and 21 years,

- Ten years passed. Stubbs by lpbeas ¢ corpus ‘patition

then adv the claim.in a federal court in Tennessee

that his 1934 conviction should ‘be set aside. ‘The federal .

_judge, in my opinion, quite erron sly, granted the peti- -

tion on the ground that ‘‘the petiti ner was denied effective

representation by. counsel’’ in thi ‘‘Court-appointed coun-

. sel did not have ‘adequate and spifficient time within which

to prepare the necessary me prior to going to’ trial’

- and, declaring the first trial “fnull.and void,”’ remanded

Stubbs for further prosecution.

. On the second trial in 1964 the’ State. sated 1 fifteen (15)

} witnesses, including the three (3) Highway Patrolman

' and a Police Investigator who were present in ‘Holm’s hos-

pital room,on June 11, 1954 and who testified to Holm’s

identification of Stubbs‘as the murderer and assailan.. The -

; testimony of another eye-wi ho. had died in the ten-

year interval was introduce from ‘the transcript. Holm

had réturned to Sweden where he was in residence. His

1954 testimony was also introduced from the transcript.

Again Stubbs was convicted of first degree murder and

‘gentenced to. twen y- years and one ‘day. The Supreme

Court of Tennesgée reviewed ‘and’ affirmed the conviction.

In an opinion by.the Chief Justice, the court’ considered

and ruled. upon. ith approval the iptroduction of ‘the

Holm testimony from the transcript. ' re was, however,

“a modification of the sentence. Stubb urged that he was |

entitled to a eredit of his pre-trial i prisonment since :

1954 and with. this claim the court agreed. * :

How and why Stubbs was relgased from Reajieesen"l ;

‘not revealed but 1966 finds him in-New York State pur- |

lla”

Appendi C—Decision of she United States Court of

_ - Appeals for the Second Circuit. *. -

’ suing his calling and ‘convicted in Monroe County of first

degree assault and possession of a gun. ‘Sentences {as a —

first offender) could have been imposed of sixteen to seven-

_ teen years: However, because of the 1964 ‘Tennessee, con-

_ victiony Stubbs was ‘a second felony offender and, under

New York Penal Law, $,1941 .(then, and to this case on:

_ Temand, turrently; applicable), was subject to the sentence

_ actually imposed of thirty-two to thirty-four-years.' Paren-

‘f . thetically, although not mentioned below, I see no reason 2

why the County Curt should riot bé able to consider the.

Texts. conviction as a predicate to second offender ‘treat-. .

- ment-on any -re-sentenice. Peg ng ee hy

All this background

ees Sieh oe, a eter “yf

nd. material, although not irrelevant to

\the-issue before .us;.has caused the majority. to divert its.

* attention to Tennessee instegd of to New York. Stubbs -

is not seeking telief from. his/Tennessee eohviction as such ]

__ batsimpty from its use. to support a longer sentence for

this subsequent-New- York conviction. The attack now made

- & the Tennessee conviction is purely collateral. “ On the |.

' therits Iswould. hold that ‘we should respect the decision of —

_ the Tennesse?” Supremd Court on the subject of the admin- |

Adverting momentarily. to, the ‘merits of. admitting - |

Holm’s. transcript testimony, the facts definitely ‘show, in °| -”

contrast to widely differing factd in cases cited, that Holm

_ Was beyond -the jurisdiction. of the Tennessee courts even .

; with-federal aid: ‘See Barber v. Page, 390.U.S. 719 (1908).

Therefore, I do not~Gind’ it necessary to restrict the per-

‘missive categories to death and connivance. Enough flexi-

. bility should exist fh the law to, consider the facts. of each

_ ase in’telation to availability and importance. @ | ;

; All of Stubbs” present arguments about lack of: confron-

tation are“but a smoke-screen. He and his counsel con- - ~ >

_ fronted Holm; his counsel cross-examined Holm ; the. issues

aa ( : *”

* < a

~and facts were not complex. More important, however, is

| ~ the fact that on the 1964 trial; many. eye-witnesses and ear-

- it was important as an ingredient but so is almost all (csti-

error be a factor on direct appeals, how much the more 80

*. should it be on collateral attacks ! |

. eralities. We all recognize the rights of confrontation and

ae Da,

Appeals, for the Second Circuit.

witnesses testified. Stubbs undoubtedly would have been

convicted wtihout the use of Holm’s testimony. Of course

mony placed in: the eategory.of harmless error. If harmless°

In iny opinion the able argument edivancod by- Stubbs’ -

counsel\has sought to divert us (and succeeded as to the

majority \into paths of constitutional and hackneyed gen- _

cross-examination. . However, the many’ cases.cited based -

on other and different facts are not dispositive here.

I would affirm the denial of the writ but at the very least

would have the mgenpecd give more explicit instructions to’

the County Court on the possibility of regarding the Texas

"under § 1941 ‘of the New Yorks Penal Law.

13a

Court for the Western District-of New York |

_ UNITED STATES DISTDICT COURT |

WESTERN District oF New York

“Civ. 1969-136

Unrrep States ex rel. Witiam C. Stupps

. - Vincent R. MancvsI, Warden, Attica State Prison

Petitioner prose. .

' Rithard R. J enczka, Assistant Attorney :

General of New Work, for the respondent. |

2) te ‘ FINDINGS OF Facr’ |:

Section 1897; Subdivision 2 of the former New York Penal

"aterm of 19 to 20 years on the assault, first degree charge,

. rs

and-to a term of 13 to’14 years on the firearms charge, as a

Thé search which disclosed the revolver and other articles

in the closed glove compartment of the defendant’s auto-.

mobile was unlawful; the evidence should have been sup-

~ Pressed. (2) The evidence offered as.to both assault and

. , e

Pa _ \ i)

on) : :

Appendix D.—Decision of the United States District

, J. The petitioner is held on a judgment of" Monroe |

County Court following a trial, where he’ was found guilty

of the crimes of assault, first degree, and-a violation of -

Law, a felony. ‘He’ was sentenced on October 7, 1966 to.

second felony offender, the ‘sentences to run consecutively.

2. His‘ claims ‘in this proceeding are as follows: (1)

EEN LEON ET INR GPP Gt roam

stele Orgs y

* e ©

\ .

PRL FO NELLIE AID IF ELL ENINS I E08 AY

a - . > th ‘

possession of a weapon was insufficient as a matter of law;

ant refused to consent. (7) At the trial, to prove the .

- defendant’s ‘identity as to a prior felony, the trial judge

‘preemptory challenges in the selection of the jury. (8) The

identity issue, the fact that the defendant. stood convicted

‘have -been made the basis for increased punishment. (10) °

1969.

_ the return of this order to show cause.

~-°

14a.

Appendix D—Decision of the United States District Court

for the ‘Western District of New Y ork.

the verdict was also against the weight of the evidence,

(3) The police lieutenant was improperly permitted to

testify to inflammatory conclusions made by him before .

the arrest; Mr. Wunder, was permitted to give inflamma.

tory hearsay testimony. ' (4) The erroneous instructions

by the trial judge, although: not excepted to, require a new «>

trial. (5) The prosecuting attorney was improperly per-

mitted to indulge in an inflammatory summation. (6) The

trial judge committed prejudicial error by permitting the

jury to take exhibits into the jury room, when the defend-

committed prejudicial error by refusing the defendant

trial judge improperly disclosed to the jury.trying the J

of a felony in New York. (9) The predicate conviction in

Tennessee. was ‘unconstitutionally obtained and should not

The sentence is too severe and proud be reduced.

3. The conviction was ‘qiemed by the Appellate Divi;

sion, 30 A. D..2d 377. Re-argument was denied, 30 A. D.

2d 932. The Court of Appeals of New York: denied per-

mission to appeal. Certiorari was denied | February 24,

4. Pursuant to an order of this court: dated April 21,

1969 the respondent has produced for this court’s exam-". |

ination the record on appeal to the Appellate Division and’

the briefs of the respective parties:in the Appellate Divi-

sion. The presence of the petitioner was not required on

5. The. petitioner hesseriausted available state rem-

edies: The papers produced are sufficient to allow this court

15a

“Appendix D—Decision of the United States District Court

. for the Western District of New York.

to deterniine the questions presented in this proceeding. ;

There is no need for a further hearing.

6.. On the evidence before me. ‘I find : () The search

of defendant’s automobile was lawful. — It was incidental -

toa lawful arrest. The fruits of the search were properly

received in evidence. (2) There was ample evidence to

support the verdict of the jury both as to assault and to

| Possession of a weapon. The verdiet was not against the

weight of the evidence. (3) There is no merit to peti-

tioner’s claim that the police lieutenant was improperly —

permitted ‘to testify to inflammatory conclusions made>

by him before the »grrest, and that Mr. Wunder was

permitted to give inflammatory hearsay. testimony. There

_ were no erroneous instructions by the trial judge to the

» jury. (5) The stimmation of the prosecuting attorney was

“not inflammatory or prejudicial to the rights of the -peti-

tioner. (6) There was no error on the. part of the trial

judge in permitting the jury to take exhibits into the jury

room, when the defendant refused ‘to’ consent. (7) The

petitioner’s claim that, at the trial to prove the defend- —

ant’s identity, the trial judge committed prejudicial error

by réfusing the defendant’s preemptory challenges in the

selection of the jury, presents no federal question. (8). -

-There is no merit to the petitioner’s claim that the trial

judge improperly disclosed to the jury ‘trying the identity

issue, thé fact that the defendant stood convicted of a

felony in New York. | (9) The predicate Tennessee con-

viction.was not obtained in violation of. petitioner’s rights

under the Federal Constitution. (10) The sentence was

‘Not excessive; = 8 eo. tek

7. The conviction and sentence ‘under attack in fhis

~ Tights under the Federal Constitution.

_ Proceeding was not obtained in violation of the petitioner’s -

PRN Ruth Sem aR

. 4 .

“re

. . : ’ .

‘ e . .

PANN omer ie MUA RR eemiyente Se eae eae Oe Re De Pe NE IRE ARENA POM EINE TOR OE ENT SY BO I ok RAR NORPRO BRC cI eo

Peer.

16a

Appendix D—Decision of the United States District Court

‘for the Western District of mi ew Y ork.

Ne 4

» Conctusion OF Law

I. Petitioner? S aprlicaton for a writ of habeas corpus

is denied upon the merits.

Ir IS HEREBY S0 ORDERED.. -

Certificate of probable cause is denied.

_ Permission to appeal in forma pauperis is also denied

with the qualification that the petitioner may file with the

Clerk of the United States District Court, United States

. Court House, Buffalo, New. York, a notice of f appeal with-

out the’ payment of filing fees.

This’ denial does not prevent the petitioner from apply-

ing directly to the Court of Appeals for the Second Cir-

cuit, United States Court House, Foley Square, New

York: City, for a certificate of. probable cause and for

Permission to prosecute an appeal in forma pauperis.

Hasom |g a"

U.S. District Judge.

June 30, 1969.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.