Brief for the Respondents in Opposition — Mancusi v. Stubbs

’ ' Beis ANE LORIE

ACE RARER IATL ART RT TH ;

: \

INTHE ~

- SU PREME COURT OF THE UNITED STATES

OCTOBER TER M, 1971

ie 7” No. 71-237

f.

a INC ENT R. M, ANCU SI Superintendent of Attica a

| Correctional Facility,

| Petitioner,

\ : against —

.. WILLIAM C, STUBBS, |

| oe Respondent.

BRIEF FOR RESPONDENT °

POSING PETITION FOR WRIT OF CERTIORARI

‘0 THE UNITEDSTATES COURT OF APPEALS

me FOR THE SECOND ee ae

a c BRUCE K. ‘CARPENTER

. ; Attorney for Respondent

_, Woodin & Carpenter -

| 14 Lester Building

“4 7 - + 57 East Fourth Street

- Dunkirk, New York 14048.

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} conflict ‘with decisions of this Court: ; prior. .

rded testimony, admitted in. Violation of '

on rontation clause

No effort to obtain pyesence of witness eae

Prior testimony unugable, as without effec.

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igi OF Cases.

Bailey ‘ United States, 410 F. = 1209 ‘(10th Cir.)

egrt. den. 396 U. S: 9 33

Barber v. Page, 390 U: vs 719

Berger y, Califor, 393 U.

California v.. Green; 399.U%.

if Ch hambers. v. alifor, 399: U. g “42

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ete toldwasser \ _ Brows: “41T-F. Dd 1169, (D. ron Cir.) cert, a

Be den. 897-U DIF ine cid ow ov dat leet.. 5

ohn LeBaron v. Crombie, ]4 Mane. 235 Peer Ts: * 11sth, *%

wee \ ts Maryland_y. Baltiniore Radio Show, 338 U. 8.912 ...2 3

2 wa ee - Massachiuset s v- Painten,-389 U: 8S. 560 ..000..0000..

eS | : 3

ot. 1” Motes yv. Uni ed:Stites, 178 Urs. “458 vawetmodstttewcs 5

aS Reterson.v)/United States, B44 F. 2d 419: (5th re ir: ,: 5

we So Pettit’ v. Bitay, 62 Wash. 2.515, 383 P. 2d 889 >....:.. |

cc mar Ve “.. Pointer: Vv. Texas, es0: U, \. t 1 Bee Pe en 3

ae A Reginayy, Scaife, VW Q: Be 538+ 2-Den. C. ¢ cian Cox,

\B jw Co ae a paras y ee wt 78

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mt ‘State %.'Ci be, 9 ‘Aris. ‘App. 2533451 P. 2d 333 So Xane f!

7 Sye ~Stilbbs v. wen ar (U.S. D.C. M. D. Tenn. ; Civil. Aetion

. _ “ - Ne. 3585 ) oe

an ee Wnited pares | _ tel. Sttibbs M Manet 442 PB. DT

wo NAG Emagine dakl er ids (hyde Sie s tm cad 456.8, 10

he IW ‘Mit x. Seldén & ¥. Sip: Ct. 3 6 ¢ owen 165°. 5

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| ae ae .. TABLE OF Sti ATUTORY AND ConstrruTiosat. Prov ISIONS.

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IN THE > _

. SUPREME COURT OF THE UNITED STATES

att - , OCTOBER TERM, 197i

' No. 71-237 ;

_ VINCENT R. MANCUSL, Superintendent of Attica

“ss Correctional Facility, .

| . against . i &

+ WILLIAM C. STUBBS,

Respondent.

BRIEF FOR RESPONDENT

|| .OPPOSING PETITION FOR WRIT OF CERTIORARI . -

_ TO'THE UNITED SPATES COURT OF APPEALS

. FOR THE SECOND CIRCUIT “i

ag

; é | STATEMENT OF CASE

An earlier Te

nnessee conviction ‘was used by the State

of New York to’ give the respondent William C. Stubbs in.

creased punishment f ollowing a New York conviction. After

_ habeas corpus relief to the United States District Court

‘for the Western District of New York. In UnitedStates

| Appeals for the Second: Cirenit reversed with one judge

tenced in the Monroe County Court of the State of New

York. ©. ~ : : |

"The court below held that in the light of Barber vy. Page,

990 U.S. 719, 724-725, Berger v. California, 393 U. S. 314,

315, and. California v. Green, 399 U..S: 149, the Tennessee

Petitioner, ,

_ exhausting his state remedies, . Mr. Stubbs. applied for _

ee rel. Stubby v. Mancusi, 442 Ey 2d 561, the Court of

~ flissenting, the decision: denying relief. On May 19, 1971 a

— petition for rehearing was denied, and a suggestion for -

argument’in banc was denied, no active cireuit judge ‘having’

been heard in favor; the respondent Stubbs is to be resen.. -

eo

.

2

3

4

9

~ .

conviction had been piganied 4 in ‘polation of the confrénta.

tion clause of the Sixth Amendment. At the Tennessee triat

. the prosecution's primary y ‘witness did not | appear, but

earker testimony of his was read into e vidence. No effort -

had been made hy the prosecuting authorities j in’ Tennessee

to obtain this witness’ ‘attendance at the trial.

_ It Was shown

only that the witness had moved to Sweden.

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ARG U MEN

‘l. ‘The record as not cle arly prese uting he issues songht

to be raised. ;

The petitioner secks: i raise Foi questions, all relating.

to the validity of the Tennessee conviction (seeé pp..2-3 éf

the pe tition). A transcript of the Tennessee trial is not in-

eluded in the present record.’ The erucial records came.

“to the atte ntion of the Court of Appeals below, because hoth

of the present parties invited judicial notice of them. The

“Interests of justice led the court below to sift through ree: -

ords from many places before str ining down the

Judgment, . <4 : >

Tennessee

The peculiar circumstances of, this case, furthermore

have ‘prevented the government of Tentessee from’ peing

heard below. Mr. Stubbs" second Temiessee trial took place |

-in 1964 and his New York trial in 966. The parties both

in Tennessee and New. York did not the ‘n have a chance to -

focus upon the present issues in the light of. the controlling

Tn denying relief the United States Dis strict Court for the Western.

District of New York neted that it had cons sidered only the records’ of

thie New York proceedings (4 of the decision, reproduced as appendix

D to the pe tition for certiorari, p. lta). Neither. did the New York

Monroe County Court consider them before imposing: sentence. See

pp H-75 >of the. tr: anseript of proc eedings of October 6. 1966:

.-

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ow. .

_

decision, Barber v. Page, 390 U. 719, which was handed

down in 1968, - ws | ay

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This Court may well conclude that the present record is

not sufficiently clear and Specific to warrant decision upon

the constitutional questions sought to be raised by the

titioner. Compare Massachusetts v. Painten, 389 U. S..560,

061 and the opinion of Mr. Justice FRANKFURTER in Mary-

record may be clouc y. It may be desirable to have different

aspects of an issue further illtunined by the low

er courts.

7 - oo *, @ sf Minit

Wise adjudication has its o

wn. time for ripening.”

-

Il. Possible m ootness,

Following the mandate ef the court below,

. against: the respondent Stubbs. have resumed in the Monroe.

County Court of N ew York. The district attorney has filed

an information charging the respondent with being a second

felony offender as a result of/a 1953 Teras conviction for

breaking and entering? At the time of the writing of this

brief the Monroe County -Court has already determined

‘that the respondent is the same person who was convicted in

. Texas. -Yet to he determined is. whether the. Texas convie-

"tion was constitutionally obtained. The present controversy,

arising from the use of the Tennessee conviction, may well

heconie moot. ‘ a 3 ne

stand

* The applicable Statute, former New York Penal |

_ 1, permits a ‘sentence for second or. third fe

the maximum allowed for first offenders.

aw, $1941 subd.

lon¥ offenders of double

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land. v. Baltimore’ Radio Show,- 338 U. §. 912, 918, who.

wrote: “A case may raise an important question but the: - -

proceedings .

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Ti. No conflict with decisions of this ‘Court; prior

recorded testintony admitted in violation of confron-

tation clause,

UA. No rrrorr TO OBTAIN PRESENCE OF WITNESS.

The first reason advanced by the petitioner for allowanee .

of the writ of ‘certiorari is that fhe decision below consti- .

tutes’ “a significant departure from the. prior decisions ‘of

this Court’ ’ (petition, p..3). The decision below, United

“States ex rel. Stubbs v. Mancusi, 442 F.2d d61, een re

applied, the rules announced in Barber v: Page, 390 U.

719, ‘in which the Court. stated: “The Court of om

majority appears to have reasoned that because the State

would have liad 1 to request an exercise of diseretion on the

part of federal authorities, it was under no obligation to

make any such request, Yet as Judge Aldrich, ‘sitting by .

designation, pointed out in dissént below, ‘the possibility of

a refusal is not the equivalent of asking and receiving a

rebuff.” © 381 F. 2d, at 481. In short, a witness is not ‘un:

available’ for purposes to: the foregoing exception of the

confrontation requirement unless the prosecutorial authori-

ties have made a good-faith, effort to olitain his presence at

trial. The State made. no such effort here, and, so far as

. this record ‘reveals, the sole reason why W oods was not

present to testify in person was because the State did not

attempt to seek his presence. The right of ee

may not he dispensed with 0 lightly.” (390. U. 719, a

25) : . -

The‘confrontation clause of the Sixth Amendment is very

straightforward, providing: “In all erintinal prosecutions,

the accused shall enjoy the right . ,- +0 he confronted with |

the Witniesses against him: 77 es

3 At the biome the Sixth _Atpe ates ‘nt was adopted mere absence from

| jurisdiction justifie “d no exception to the right of confrontation.

ee ( Footnote continued on followi ing pase),

A : e ‘ ’

4 .

a

The petitioner seeks to distinguish Barber v. Page, 390

U.S. 719 from the present case, because the witness whose

presence the Tennessee authorities did not attempt to. seek, |

was in Sweden and not ina federal penitentiary: 225 miles

away in,another state. In this era of Jet travel there is no

reason to draw such a brutal distinction. between. travel

_ from Sweden and travel from, Texas.’ The two California

decisions cited on p. 9 of the present petition appear to have

‘involved effort to obtain the witness. Goldwasser v..Brown,

47 F.2d 1169 (D.C. Cir.) cert. dén. 397 U. S. 922, the

other cited by the petitioner, was not a criminal proceeding,

and thus does: not involve ‘the confrontation clause of the -

Sixth ‘Amendnient,

B. .- PRIOR TESTIMONY UNUSABLE, AS WITHOUT EFFECTIVE |

CROSS-EXAMINATION. | .

There is a second and independent reason why the Sixth

and’ Fourteenth Amendments render invalid the respond-

ent’s Tennessee conviction. ‘Even though a prosecution has

made a good-faith effort to obtain the presence of a witness,

itis not_every prior statement of the witness that can be:

read into evidence. Only when the accused had.an effective

opportunity to cross-examiné the witness at the time his

testimony ‘was recorded, can the ‘testimony be used at a

later trial. Cross-examination is an essentialtequirement.*-

(Footnote continued from preceding page) ; :

_ The exceptions were (1) death of the witness or (2) absence. because

of the defendant’s connivance. Regina v. Seaife (1851) 17 Q. B. 238,

o42, 244; 2 Den. (. C. 2841, 285-286: 5 Cox C. C. 243, 245, 246:

Motes v. United. States (1906) 178 UT. 8, 458, 471-493: Wilbur. v.

Neldon (1826,.N, Y. Sup. Ct.) 6 Cowen’ 165: LeBaron vy. Crombie

AISI7) Tf Mass. 234,- 235: oe

See Peltit y. Rhay, 62 Wash. 2d 515, 3383. P. 2d 889, S93 (Cross- *

fxamination not permitted) : Pointer ¥, Teras, 380.U. 8. 400, 406-408

(earlier testimony recorded when accused was deprived of counsel) :

Barber v. Page, 390 U.S. 419, t22 (discussion of counsel being* in-

peded’ by ethical considerations) : "Peterson: y. United States (35th

Cit.) 344 F. 2 419, 424 (issues different. when testimony recorded ) :

Mate ve Cumbo, 9 Ariz, App. 253: 151 P. 2 333, 336 (defendant

involuntrily absent when testimony’ recorded ), ee

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The testimony read at the 1964 Tennessee trial of the

respondent Stubbs had been given at his first trial, in 19545.

The court below held that the testimony of the witness h

: : a

been taken when the respondent Stubbs was effectively de-

prived of his right to cross-examine the witness (442 F.9d ~

561, 563-564). Assigned counsel at the 1954 Tennessee trial

‘were compelled to go to frial without a_ sufficient time to

prepare.a défense. For the offenses which allegedly took

place on June 11; 1954, the respondent Stubbs was indicted

on July 8, 1954, was arraigned and was assignedecounsel on

July 9, and went-to trial 6n July 12, 1954 over the objection

of his counsel. The court below: made a careful analysis of

the.cross-examination attempted of the witness at. the first

Tennessee ‘trial in the light of the defenses raised, to con-

clude that the cross-examination of the witness’ in 1954 was

ineffective (442 F. 2d 561, 564). (For further discussiow of

these factors, see part IV‘’B, below.) -

5'The Tennessee convictions were set aside in 1966 by the United.

States District. Court for the Middle District of Tennessee, Stubbs v.

Bomar, Civil Action No. 3585. Contrary to the suggestion made on

p. 11 of the petition for certiorari there has been no ‘clear Contraven-

tion” of this Court's holding in Chanibers v. Maroney, 399 U.S. 4.

A “full and complete” hearing was conducted by the District Court

for the Middle District ‘of Tennessee, which held: ‘The Court is of.

the opinion that the evidence and the‘record show tHat ‘the Constitu-

tional rights of petitioner Stubbs were violated at the time of lis*trial

in the Criminal Court of Sullivan County in that his Court-appointed

counsel did not -havé, adequate and. sufficient time within which to

prepare the necessary defense prior to going to trial, and as a result

the petitioner was denied effective representation by: counsel. This

decision appears to have been accepted by the prosecuting. authorities

in Tennessee, who promptly awarded the respondent Stubjs a second

trial. Certainly, the present proceeding -js singularity inappropriate

for attacking the setting aside in’ Tennessee of the 1954 conviction.

‘See the discussion‘in part [, ahove: 2

< 7

VV. Error not shown to be harmless. _ ,

r - e . kK,

A. NO CONFLICT. WITH DECISIONS OF OTHER CouRTS OF

APPEAIS. +. : .

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The petitioner has argued that the court below “in effect

_diminated the harmless error rule except where a federal

court finds that. tlie trig] jury could have reached no other ° . .

«onclusion hut guilt—a more rigorous standard than is *

applied on-direct appeal”, an interpretation said to be in. e :

conflict with the law of four other circuits (petition, p. 14). . :

The petitioner appears to.misconstrue the doctrine of harm- |

less error. The six eases cited-to show a conflict among the . #&

_dreuits deal with what constitutes sufficient evidence to 5 f

eonvict under. various federal criminal statutes. Indeed, a

holdings similar to those in the. cases cited cat be found in : 7

all of the circuits: The distinction between a harmless | j

error issue and a sufiicieney of evidence issue is strongly f

drawn in Glasser y. United States, 315 U. S. 60: which held t

as to sulliciency of evidence ; “It is -not for ‘us to Weigh the i

evidence or to determine. the credibility of’ witnesses. The ~ ; :

verdict of a jury must be sustained if there is substantial F

. evidence, taking the view most favorable to the Government, |

to support it.” (315 U.S. 60, 80); but which also held: “To ~

determine. the. precise. degree of ‘prejudice sustained by '

. filasser as a result of the court's appointment of [his a F

torney as counsél for a codefendant} is at once difficult and e

unnecessary, The right to have the assistance of counsel ‘is 4

ee po :; Race, re .

* The only one of the cases cited, which even peripherally deals with |

harmless error, is Bailey v. United States, 410 F.2d 1209 (Leth Cir.) E

cert.den. 306 UL 8,933, arising from a proseention for kidnapping and f

for transporting a victim-in interstate commerce, for sexual gratifica- t

| tion. | After discussing at length the sufficiency of the evidence, par-

ticularly as against one.of defend:nts, the court then disposed in sum-

mary fashion of an argument about the introduction of photographs,

_ holding: nothing about them to be inflammatory and that.““If there

Was a lack of proper foundation for admission, the error did not affect”

substantial rights of the accused: and was harmless.” (410 F, 24.1209,

1217), ar “Bt a

FEES Log PYRE.

this cause. (see part I, above). ae

too fundamental and ahbeolute to allpw courts to indulge in in

nice calculations as to the amount of prejudice arising from:

its denial. ” (315 U.S. 60, 75-7 6).

The court below was fully in aceord with this Court's de.

-eisions.on the harmless error rule. See Chapman v. Cali.

fornia, 386 U.S. 18, in which it was held: “There is little, if

any, differénce between ‘our statement in f ‘ahy v. Cott

neticut [375,U. S. 85, 86-87] about ‘whether there is a rea-_ -

- sonable possibility that the evidence complained. of might

have contributed to the conyiction’ and requiring the bene.”

ficiary ef a constitutional error to prove beyond a reason.

able doubt that the error complained of did not contribute

to the’ verdict ‘obtained. We, therefore, do no more than

“adhere to the meaning of our l'ahy case when we hold, as we

now ¢ do, that before a federal constitutional ° error can be

held harmless, the court must be able to declare a belief that

it was harmless hey ond a reasonable doubt” (386 U. S. 18, .

24). Bhi .

‘B. PREJUDICIAL EFFECT OF USING THE: PRIOR TESTIMONY.

Whether constitutional error -can he, excused because

harmless, is in essence a faetual inquiry. A careful weighing

of the evidenee was made by the court helow (442 F. 2d 561,

. 564)... This Court may not wish to grant certiorari to re-

examine the ¢v idence, especially since the records from the

State of Tennessee are not part of the certified record in:

<

’

cd]

The. conviction | of: the ‘Ponoonsinnt Stubbs, was: for the

murder of a-Mrs. Holn¥ (and connected crimes). Although”

there were a- number. of witnesses called at the 1964 .Ten-

nessee trial; not one of them, save the defendant himself,

had observed the. homicide and the events Jeading to it. Mr.

Holm, the husband of the deceased, had observed the events

~ -and had given testimony at the 1954 trial. Over the vigor-

rat

ous objection of Mr. Stubbs’ ‘counsel at the 1964 trial (159.

164, 173, 1747), the testimony of Mr. Holm was read. His

testimony, was: that Mr..Stubbs; who was armed with a>

pistol (AS4y, forcetl his way into the Holms’ ear (186) ; after

driving the car for a while, Mr: Stubbs suddenly shot both.

Mr. Holm (194) and Mrs. Holm (196-200). Mr. Holm did

not testify to any ‘provocation or activity on the part of his

wife or himself. befor e Mr. Stubbs started shooting; “When :

he started shooting, I. jumped up and grabbed the gan. Of ©

course, | was too late. Ile already shot her, but: there was

cone shot fired after that: it went tp.in the top of the.car”

(197). While Mes. Holni; was slumping over, Mr. Holm.

struggled with Mr. Stubbs, ot the pistol away from him,

and started hamme ringshvtay with it at Mr. Stubbs’ head

(200): Later Mr. Stubbs was brought by the police to Mr.

~~ Holm’ x hospital roomgor identifics ‘ation ( 200).

The respondent Stubbs’ testimony was that he had foreed -

himself upon the Holms at gui point because he was driven

~ by desperation and hunger (242-248). But after. he had

explained lis motiyation ( 249), the Holms made him swel-

come, Mrs. ‘Holms even suggesting that he put the gun_

down so that he w ouldn't get into trouble going through a

town (250). He idl this: _ the ‘yo passed. a policeman with. no

outery hy the Holms (251). Mr. Stubbs’ understanding

with the - ‘Holms Was that cies they reached Bristol, Ten-

hessee, he would get out and tliey would continue on their .

Way (2535, Soincthing suddenly happened to alter his per. °

ception, “T félt a sharp pain that seem‘ [sic] to startin my ©

head and go all the w ay down through me‘and | reached up

with hoth hands ‘and: I heard this loud roar, bang .

‘Stuff started running down my “face and dow’ n my shirt and

a .

7 These numbers in the parentheses: and dhe to follow re for to

‘pages of the transe ript. of the’ 1964 Sullivan County.-Tennessee trial.

No. od HON, . -

.

7

—

SLING et cane TT oer eee SOUSA TRC RINE er VS BSE RGR

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wollsrrense amare

RURRRMeNL Coty myer oe

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RUTYMNED 20

ae 10

"all that I could think of that he has got the gun."Q } hat:

. did.you do?. A I just ‘went outside through. the. care

(254). -o

*

"None of the other w itnesses saw any thing of the homicide

or_knew anything’ of ithe dev ipl. relationship between

Stubbs and the Holms.. Accordingly, any error introducing

the prior recorded testimony Af Mi. Stubbs was far from

being harmless. Mr. Holim’s Astimoniy was Vital. Lait

conviction. 7

Even if a brilliant and searchi ross- examination of the

| wi ‘itness ’ Holm had beén conducted % , 1954, the impact of |

_Holm’s testimony, ‘as the only eye w itness to the alleged **

-erime, would haye, made ‘the error’: cof admitting the testi-

‘mony ‘at’ ‘Stubbs’ Secor, trial the diametric -opposite of

harmless. - i eri eo aa iy

The prejudice is accentuated, however, by the failute of -

Stubbs’ 1954 counsel Cw ho had been rushed ‘to trial) to-make

any thing ‘hut a cursory cross-examination (207-217). ‘There.

‘was no examination of Mr. Holm exploring precisely what”

happened:at the shootiig, no attémpt to establish that the

~ Holms had made Stubbs.a guest after his’ jnitial. criminal —

incursion... Well founiled is’ the conclusion of the court :

.* below, “we cannot déclare 4e absence: of any examination .

of Holm—the only eye, to the alleged erime—on this

. point to be harmless heYand a_ reasonable e douht™ sina r. 2d

561, 564). “» :

oe RS COMCLTRNOIN 18S

/ 4 .

_Becaust. the records leading to the respondent's 1964,

: ee convicti ROW under attack were not introduced

- inte evic ence he OW hecause the Tennessee amshorities re-

sponsible oy ‘the conviction have not been heard in the

“present proceeding, hecause important me

4

leading to

‘the respondent’ S cony iecd. took place hefore the Se

trolling decision of this Court was handed down ,—the prés- °

~ ent recotd is not clear, specific and full. The prosecuting _

aitthdrities of New. York appear to liave found a Jexas con-

siction of the. respondent, w hich can be used as_a predicate

‘felony, for increased punishment.. The present proceedings

‘attac] ‘ihe a predi¢ate: Tennessee ¢ cony iction may w ell become’

The decision below is not in’ conflict ith decisions of this

Court or:with those of other courts. Because the prosecu-

tion in Tennessee made no effort té obtain. the presence of

#witness, the use of prior recorded testimony ofthe witness

at trial deprived thé respondent, of riglits tinder the Sixth.

sand Fourteenth: Ame ndments.. -Ewen ik the prosecution in

"Tennessee had made such a good-faith e ‘ffort, the prior tes-_

: timony should not haye been used, hecause : the testimony

was taken’ without an effective oppor tunity for cross-

examination. The transcript of the second Tennessee trial

- clearly demonstrates that the err or of using the prior testi.

‘mony. was highly prejudicial ; the error most certainly was

not harmless hey onda reasonable dAdatht.

For. these redsons, as well as the essentially factual

nature of the i inquiry helow, this ourt should deny the pe-:

ition for certiorari to the United: States Court of Appeals

r the Second, Cyreuit: | ,

-

op ae

Respectfully submitted, =: ae

5 . 7 P . >

- * . .

7 Ww ILLIAM. G Si UBBS, Respondent,

By his attorney,

Bavce KC ARPENTER.

Pome f Tages

¢

Dunlark, New York ;

N avembe r_8, 1971.

.

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mbsimerariver tansy NEE RNERTAaTR RCT a RSE TE OR ANTS

iis Bal at é = San Orne:

*

7