Petitioners Brief — Mancusi v. Stubbs

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7 SOTORER Tem, wet 1 TPT LED Ds

bases No. 71-2370 .

“,- Vawoumir B Manos, Warden of* a ee

za Attiéa Correctional et ie :

: are ee OS Pati,

os Wiuic €Sromss,

"_ BRIEF FOR PETITIONER

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dos J. LEFKOWITZz ©

‘the

State of New: York

Attorney for Petitioner ,

+ -80 Centre Street

New _ New York ioo13

- SacvEL ‘ik, Sines se <

’ First Assistant Attorney General Se oe

“Mani L. Maxcus '

Assistant Attorney General LET Hep NSE anges

_Stantey L. Kantor | on ee A ©

“. Deputy Assistant semana les General cog ht ee .

Dad Gounsel . eee ae a

dpinic ns : a ge 1ers Below Se ests FP a eae

pote Re Be Pee : : aes - a : - : :

ae ‘wrsdiction gicns WES icon sveeketier sock \l 3

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3 ‘Stitement . preter eegettthe Geet e Base leereer 3:

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*-& Potyr J Barber v. Pages $900, Ss 719 (1968), which - se

[_o “concerned reading of ‘preliminary hearing testi-- fica ee

‘9. mony of a witness itiprisoned i in another state, . zo

__.was not, violated’ by” ‘use of prior testimény’ of ab =

- _witnes¢ permanently domiciled on a foreign con- ,

tinea vey ieeeeeeeears Neteeeege seeds wecee on —

Pont. Even assuming arguendo that. dire dili-

Samide oh “continent palore: his prior

recorded’ testimony i is admitted into evidence, the

" error in the case e at bar would have Deen harm:

"Jess at bicee vical des hectar eaehs Riches tte eee, BS Pare

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tas IIL ince the tardy appointment of soeeiak.:

_ &t respondent Stubbs*. first. trial did not in fact °

_. deprive respondt t of effective assistanee of coun-

'~ sel, no Sixth Amendment right was violated A pea

% reading tiatinooi recorded. at this trial into ~~

~ Spondent’s retrial «0.2... 4... Se erepeg pews eink 5 ae"

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‘TABLE or CONTENTS 7

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ee — : ae 8 no bs ng ‘PAGE -

5 "Bailey v. United States: 410 -F, ta 1209° (ton Cir i

‘ - . 1969), tert: denied sub. nom. Freeman ve United. Q

ot Na Staten, 296 0, 8. 988 6ST Seles loceescad 8

ae Barber v. Page,890 U. S. 719 (1968)... becbe ee 6. 10, 12,3

tenes Battles v. United ‘States, 388 F. 2d 799, a a. 3

meee Nand'5 (5th Cir. 1968) ..... piste oben ss eevee

—Be r. California, 393 U. S. 34 (1968) a os

ae California v. . Green, 399 U. S149 Bs eee a 38.

me Cdinbers v. Maroney, 399 U. 8. 42 ints ‘ee Sm .

2 = =—Datton- We = iy ene Tr. s. auecinionmns = 8. ct. “ato e

rae ON adie ee eect Nihdocss pln shee ‘y

oe Early v, United States, 394 F. 2a 117 (10th Cir. 1968),

ert. denied 393-U.-S. 1003 * mrgtassrascstene sept

- Freeman v, United é States, 396 U. S. 933 * ii alts oes on

ne _ Goldwasser v. Brown; 417 F. 2d (D. €. cir 1960) .. “ll

tes folubin 7 United-Stater §, ovo I. 2a 90 30h Gi. ie

Ge aes 1968), cert. denied 393 U8. 83 oo Ee 15, 16.

: Governm Virgin. Islands v. “Aquino, 378 1 Fr. 2 :

7 BAD (3a Cit. 1967) ' ee. eebis iabors 8 ar)

Ee “Harrington v. California, 395 U 8. 250 (1960). see onar

S Holman v. Washington, 364 F. 2d. 618 (5th Cir. 1968 2

ce 2 "eople v. “Ashford, a break esi 619 Ae ‘of ° “App. a >

1968) ones SPSCCOCHSECCEC CCL ORD ECEReeceeeheceee dee

People v.. Benjamin, 83 Gal. Rptr. 76g" (Ot. of App.

pee doer coe, enema see

eC Pointer v v.Texas, $80 U. 8. 400 (1965) oe ep irvee +2

6S is me r

Sprinan, Jo John Aim Prope abion and Teal, 16x.

‘“p

eo ees taba

Gabbe v. ‘Bomer (Civil J Action, 3585, u mie a} #4

Subbs v. State, 216 ‘Penn, Of, 898'S, W. 2a 150 . see: ee

hited States v. Boyle, 402 R. 24-787 (37 ‘Gr. 198), fi ie

*' ert. denied 394 U. 8934 20.2... per 1B

Thited States, ¥.. econ 388 F.

eee PE

Tate § sins :

Tnited-S apne ay sia. 2 241 (6theCir. eee

PM ic 15

Thited States v. Mobley, 401 F. 2d 345, 351. (i970) 0?

Williams v. Beto, 354 F. 2d 698 (5th Cir: 1965) ..2... i9 =

Wilson v. . Bowie, 408-F. 24 11085 (9th. Ci. 1966)... 32

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» Sipreme Court of. the- United States

Lees ! aif Rewer

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OCTOBER TERM, 171”

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3 ze ¢ cs j 3 dee co oj ee i : , Petitioner, r | -

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' 9+ BRIEF FOR PETITIONER > ~

_ The orders of th Unite States Court of Appeals deny-_ Bh

ing the Petition- for rehearing and rehearing in banc‘are |

‘reproduced ‘as Appendix A and Appendix B to the peti-

tion for writ of certiorari in the within case. The opinion ~

of the United States Court of Appeals for the Sebond

Cirétit is reported at 442°F: 2d 561 ane appears’in the °

Appendix at’ p. 23. The opinion of the. United States Dis- -

trict Court for. the Western. District of New York is not

reported and-is appended to the petition as Appendix D.

Jurisdietion of this Court, is invoked. pursuant to Title

%, U.S.C. § 1254(1). The judgment of the Court.of Ap-

Peals was entered on April 19, 197 1 reversing the denial of

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teigcedeatie petition: ‘for a. ae of. habeas éorpus shy ‘the *:

_ . United States District Court for the Western District of —

ols ‘New: York. A petition for rehearing or rehearing in banc

_ -was denied by the Court of Appeals on May 19,1971. The

os petition for certiorari was filed on August 16, 1971. ‘Cer-:

Sorari was —* on er 10, we

$3 .

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- Questions Presesited

L Whether the ‘Tue requiring due diligence 3 in chiang” :

the spresence of_an absent witness is met when it is. estab.

. lished that a 72-year-old witness is a permanent’ resident

of a foreign country, ‘4000 miles from the situs: of “the trial .

- in a? ee aves aieg, Me 5

+2.: Whether senda’ ri ht. of ocahvontiatice:: was.

Yiolated. at his: seeond trial for’ murder by the. intrédue- .

_ tron of ‘the prior recorded testimony of an unavailable

. witness, where that testimony had been subject to cross- —

- examination by. competent counsel ‘at respondent’s first.

‘ trial but the trial had-later béen vacated because counsel

ae had been tardily appointed? | ay roe

3. Whether. the introduction of prior recorded a

at respondent’, s second trial’ was harmless beyond a rea-

: ‘sonable doubt, where y respondent himself testified at the

~ retrial that he had forced the murder victim and her hus- —

band into@ ear‘at gunpoint and compelled them to drive

to. the‘spot* where the shooting occurred? -

“A. Whether the claimed trial errors were prejudicial |

~ because counsel at respondent’s first trial did not cross- ..

examine a witness on whether the stranger who kidnapped

him. at — later became ais gyest?

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‘Respon twas convicted in Monroe Gomiiy,, N ew York : )

in 1966 for assault. in thecfirst degree and possession of

_wfirearm.' On October. 7,-19@6 he was seritenced as .a.

second pffender- to:a term of 19-20 years on the assault —

chargé, and -13-14 years.on the firearms charge, the sen-

“fences to run consect ively. 3 AER ON a

: - On-J: une 24,. 1968 .the Appellate Division, Fourth De-

‘partment. affirmed the conviction without,.dpinion (30 A.D,

2d. 777 ) and reargument 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 f

24,:1969,this Court dénied certiorari. (393 U.S. 1108).

4 The increased punishment imposed: upon respondent. dy:

the Monroe County Court was predicated upon a 1964 ©

~ Tennessee conviction upon retrial for first degree Ynurder —

committed'on Jupe 11, 1954. Respondent had oripinally

been convicted of fhe same murder charge-in July 1954;

‘however, the original - conviction had been reversed by

the*United States District Court for the Middle District

‘J of Tennessee on January 6, 1964 in a habeas“ Corpus pro- -

ceeding on the grounds of tardy appointment of counsel.

Stubbs: v. Bomar (Civil Action 3585, M.D. tore

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: “‘Bhe crime of which: appellant Stubl y was ‘convicted ; in

‘Tennessee was the murder of Mrs. Alex’ Holm on June ll, |.

. 1954. At the 1964 retrial, Burl A. Holm that his

parents, Alex and Ruby Holm were driving their car from -

their home in Texas through Tennessee; their destination

Was Serene. Rhode a, and from that point, they

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“ ® das orgs Holries i in 1 the trial transcript

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were to fly to Sweden (Tr. 59).' * He stated that his |

- father now resided in Ekskogen, Sweden ATr. ey |

Stubbs testified that he had been discharged from Texas.

‘State Pénitentiary in June 1954 (75a)** and that. he:

: — without money ‘and was hitchhiking through the Sonth

76a). He had been .given a gun (76a) by a friend who

been a fellow inmate in prison (93a) and had this gun

in his possesison when he-met ‘Mr. and “Mrs. Holi (81a). ~

After their .refusal to- give him a ‘lift: (81a),, he forced .

them at. gunpoint to get into the ‘back seat of their car

- (81a, 96a). With the gun in his hand at intervals: pointing

into’ Mrs. Holm’s ‘face (97a) or on the front seat (97a),

‘Stubbs drove the car ‘through Rogersville, Kingsport and

, Blountville,. Tennessee (83a; 84a)¢ Stubbs testified that

near Bristol, Tennessee (85a): .

: ig. seems awful strange, ‘but everything jai sat"

to. be awful still: and I remember a.tree and it just

seemed to come up just like that-in a clear focus, but °

in a reddish haze. .I-mean there was ho pain or §

nothing . . I felt a sharp pain that seemed to start -

in my head and go all the way down through-me andI .

... reached up with both hands and heard this loud roar,

_ bang Stuff started down my face. and down my

* shit ind all that I: could think of is that he has got 2

the . I just went outside saronen S the car door |

~ [onto the highway]. oF

- After that, Stubbs ran away to the Woods everything 7,

wont -black’’ and. he awoke. after sundown (86a). .

* References to pages. in the ‘transcript of. respondent’s 1964

” Tennessee trial, which is part of the record before this — will

be prefaced Tr. eT

. ** Stubbs’ 1964 testimony is reproduced in its entirety in the apr

| = page references to the —4 will -be — by

e , ot

| passing driver, ‘Mr. ‘ieeaie Webb? wave: y bien a lift’ (87a)

and they were. stopped at a roadblock (87a). Mr..Webb

"suggested to officers at the roadblock that Stubbs be in-

vestigated (88a). He°was taken to Bristol Jail in hand-

. eaffs (88a), then escorted within an hour to the hospital

_ where several head. wounds. were treated (88a)." ~.:

Stubbs went on to state that he was taken to Mr. ‘Holm’s

. room it, the hospital and that a man (whom he did not:

reeognize as Holm at the time) pointed to him and said:

“(That is the one ’ (89a). e denied knowledge. that.

Mrs. Holm was dead, claiming ‘ t he was hit.on the head .

and that he did not shoot Mrs, H lm (89a, 99a).

Captain Frank Williamson ‘of. the ‘Tennessee Highway »

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

~ tion about a wrecked car near Blountville. He went to the oF

scene and. found an old model Ford: with blood inside and

the door open (Tr.. 22). A’ woman had. been shot- ane a

man injured (Tr. 3): -. eae °.

Sergeant Seahorn” of the Tennessee Highway Patrol

festified that after the shooting they were: checking cars

at a highway roadblock and that when Mr. Webb and re-

spondent Stubbs drove up, Stubbs was arrested (Tr. 78).

Sergeant Seahorn told Stubbs that he was under arrest in“ °

~ connection with a:murder (Tr. 82): At the time, respond- -

~ eat had blood. on the front of his shirt and his clothes were.

torn. He explained this blood by saying that he had been ~ .

fishing and had fallen. off a rock cliff (Tr. 79). -He was

searched, and an empty bullet shell and knife were found .

(Tr. 80). Sergeant Seahorn further 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. identified him (Tr.

ae

* *Mr. Webb testified that he had peer Stubbs up on the ‘high-

way, that his shirt was a and that they were stopped, by the

_ roadblock (Tr. ea) one | 9

eke te Stubbs, there was ample light in the room Tr. 94). ex

-*

“Their sing was settee es Captain William. |

‘son (Tr. 26, 30) and Sergeant H. P. Montgomery of the.

= Tennessee Highway Patrol (Tr. 86-89). Sergeant Mont-

.gomery further said that at the time that Holm identified

Dr. #ranklin Buchanan, who attended Alex Holm.in the.

Emergency Boom of Memorial Hospi ,, testified that two

bullets had entéred Mr. Holm’ s fa dime. lodging in the

hs and the other in the “nasal passage; both, bullets were _

removed (Tr. 133-134). Despite this injury and the dis-.

comfort, Mr. Holm’s faculties: were: intact and his eyes

were good: he had brought ‘his glasses with him to the.

_hospita’ (Tr. 134-135). He identified Stubbs ‘as his’ as-

-sailant (Tr. 135): Dr. Charles Harkrader, Jr., testified to

© the same effect as to Holm’s conscious and rational state

“Be. 108). | ° .

. The sisteeny. of Alex Holm, given at Stubbs’ 19:-+ trial,

\\was read into the transcript at- the 1964 trial, over counsel’s

_ objections; Mr. Holm had in the meantime become a

» pérmanent. resident of Sweden (Tr. 59). Holm had’

identified Stubbs in court (43a)* and had testified that

Stubbs had forced him and his wife. into their car at gun- ©

point” and threatened to kill them (44a). Stubbs drove

thd car, keeping his gun in his left hand pointed towards -

. them at all times (45a). .Mr.-and .Mrs. Holm were —

ing $1, 400.00..in traveler’s checks and cash (47a).

friendly relations developed:-between them (104a). ERs

‘began shooting when they were slightly east of Blount-

_ Ville (504), twice at Holm and once at Mrs. Holm: (52a).

Holm ‘seized: the gun ‘after’. Stabds had begun to. shoot

(52a), another shot. went off (52a), and Holm hit Stubbs °

on the head with the gun 3 or 4 times (55a).. Mrs. Holm’s

. body ‘slumped over ( dda) and Stubbs ae out of the car

and ran away ( 55a).

|

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ses Holm’ $ testimony as read‘into the 1964 ae is repintuted

in its entirety in the oy and Page seterences to the as

will. be followed by “a’ |

s ‘ oN ~

Respondent commenced the: instant proceeding 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

conviction. Respondent’s tenth claim was that the 1964

Tennessee conviction was -unconstitutionally: obtained and

as such should not have been’ made the basis for increased -

] punishment (3a). Respondent alleged’ that the 1964

. Tennessee conviction had been obtained in violation of his

. Sixth Amendment right of confrontation. Cage es :

_ After having-examined the record on appeahin the New.

York: Courts, the District Court on June 30, 1969, denied

all of respondent’s claims on the merits.(see Appendix D, —

petition for writ of certiorari). “On October 7, 1969 the

Court of Appeals for the Second Circuit granted “respond-

; ent a certificate of probable cause, leave to appeal in forma

‘ pauperis and assignment of counsel. The-Court limited the .

: issue -on appeal to ‘the constitutionality of the 1964 ~

Tennessee conviction (22a). . ae i

>

. On April 19>1971, the Court below rendered its décision,

—Teversing the decision: of the United States District Court."

The Court held that respondent had been: deprived of his”

right of confrontation at the Tennessee retrial for murder,

because the testimony of a witness proven to be residing in

Sweden was read into the reco#d, and because counsel at the

first trial had been tardily appointed and had not attempted

to establish by cross-examination that after Stubbs. had

“Kidnapped the Holms at gunpoint, they had made him —

Welcome as a ‘‘guest.’”? This absence of questioning on the —

“guest”? theory could not: be harmless error (28a). :

_ The-dissenting judge, Hon. Leonard P. Moore, terming

_ the majority. decision ‘‘an extraorginary example of ‘jus- -_

tice’ dispensed by the federal courts”’ (29a), pointed out |

that Stubbs had kidnapped Mp. and Mrs. Holm at, gunpoint

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and forced them to accompany him in their car to the spot _

on the road where the shooting occurred: Holm hgd testified- 9.

. in 1954"as to the kidnapping, the murder of hjs wife, and

_ his 6wn wounding. Judge Moore found that Stubbs” argu.

ments ahout:lack of confrontation were ‘“a smoke-screen”

'_ (31a), since counsel’ cross-examined Holm and ‘the issues .

and facts were not complex. He further noted.that Stubbs |

-was not. seeking relief from his Tennéssee ggnviction ag.

: ch but simply from its use as a predicate for a longer —

* sentence® (3la),: «| Re Te

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___ *In his brief in opposition to the petition for writ of certiorari, -

respondent’ suggested that the case at bar was moot because he was

to be resentenced as a second. felony offender in the Monroe Count . .

Court, on the basis of a 1953 Texas conviction. This ‘contention:

is easily rebutted by established case law and the Penal Law of

New York. This Court held in Stbron v. New. York, 392 U.S. 40,

55 (1968) that even where a sentence is already served, the issue

— be viewed as moot because — disabilities and the oe

sibility of a higher penalty upon subsequent conviction are invol ;

» See United States v.. Morgan, 346 U.S. 502, 512 A vig 5 Pollard.

v. United States, 352 U.S. 354 (4@57).. Under New York Law,

“

o .

. > -the Tennessee’ conviction is of ar significance not only for

“. impeachment purposes but also in relation to the sentence ‘in any

_ subsequent. conviction. .§ 70.10 of the Penal Law (McKinney's

; 1967) provides for discretionary sentences of fifteen years to life

/ itnprisonment ‘for persistent felony offenders—the same_ sentence

/ authorized for a Class A felony under § 70.00-2(a).. Among the

factors which the court is required to’ consider in exercising its

“ @iscretion are 1) -the, history ‘and character of the defendant 2) the

nature and circumstances of his criminal conduct.’ Since the Ten-

nessee -conviction involved a brutal murder committed only seven

days after release from the Texas penitentiary, it would be central

in the sentencing court’s assessment of the period needed for re-_

-. , *habilitation and for protection of the ‘public interest.

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ci oe ae panes

: tly domiciled on « foreign continent. 2

The court below, in. ‘an: erroneous application of this :

Conrt’s decision: in Barber. -y. Page, 390 US. 719 (1968), —

held that the prior recorded testimony of ‘an- elderly. wit-

ness of Swedish nationality: who had permanentl:

- to Sweden, could not be used at respondent Stubbs’ .Ten-;'

-nessee retrial for. first-degree murder.. It was held that

_ due diligence had not been exerci ed to obtain the presence

«of the witness. This holding. ‘would invalidate the Te-

_ nessee conviction and preginde its use as a predicate for.

finding respondent a second felony offender after conviction

in Monroe reagrsd N York, of Sst ‘degree ‘assault ahd

E argeee of. a: rm.

- The ruling i in Barber’ was that : a good. faith effort should

7. been made to have the witness - ‘present. At Stubbs’ .

1964 retrial, the prosecution ascertained the location of the -

missing witness and introduced evidence-as to his where-

abouts (Tr. 59). As further verification, a subpoena was

‘also directed to his-former’ residence in Texas (Tr. 39,118). .

In the context of a witness who is domigled outside the )

jurisdictional reach of the states, the Federal government

‘and the territories of the United States, these prosecution

efforts satisfy the good faith requirement: As the Supreme

Court of Tennessee observed in affirming Stubbs’ convic-

tion (Stubbs v. State, 216 Tenn. 567, 393 S.W: 2d 150, 154):

“The Uniform Law to Secure Attendance of Wit-

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

any state, territory of the United States o District of

Cglciabin The Criminal Court of Sullivan Gounty,

who tried Stubbs, had no éffective or comapabeiry D pre: sf

ess in oo Sweden.” . 3

~ AEN R PAT LAT ERS EE RT ARES IER HATO OEM a ae es

10 s

By minnie. "Barber involved the eatin: of. ‘pedi

Pie heictnc testimony of a witness who was at that time i in 4

_ federal prison 225 miles from the trial court: This Court

noted: that increased cooperation Between tlie Federal gov. *

ernment and the States had factually undercut the theory

_ that the process of a: trial court could not go beyond State.

borders.. It is clear that the decision concerned a situation —

in which it was Jegally and physically possible. to. produeé

_ the absent witness, Indeed, this Court observed that in-

the éase!of prospective wituesses i in federal custody, fed-

, - eral courts had the: power o issue-writs of habeas corpus

-. ad testificandum at the request of state prosecutors, and

that the United States Bureau of Prisons permitted federal

_ ‘ptisoners to testify in state caurt crimirial proceedings pur-

Suant .t6 issuance of such writs by state’ courts. . This

Court then referred to the _daty. of. equesting ‘‘an exer-,__

_°. @ise of discretion on the art of federal authorities’”’ on

US. at 724); not of making a request to the witness.

_- Several recent decisions demonstrate ‘that proof that ey

' witness is living on a foreign continent at the time of trial

‘is ient“to establish unavailability. The Fifth Circuit j

ruled’on this question in United States v. Mobley, 421 F.. #

' 2d 345, 351 (1970),. where the earlier testimony of a: wit-

ness was used in defendant’s retrial for robbery, theft; :-

assault and murder. ‘The witness refnsed to testify at the.

retrial; because of a mistaken interpretation of the Fifth

' \ Amendment: ‘The court, after a Siesponioe of Barber, .

eld that the witness, was.

: ‘n9: less. unavailable than: [witnesses in ‘cases involv-.

ing] death or absence from the comnity | or eee in:

ability to ate “ade Conphasis added) :

And in People v. ‘Benjamin, 83 Cal. Rptr: 764 (ch of

App. 1970), defendant claimed. at his trial for robbery in

the second degree, that the introduction of ‘preliminary

— testimony of a maining ‘witness violated his right

° . dae : ; i “*

s ’ . ‘<'

ot. sonibrosiinticia. The sreneeiiiod bhowed that it t had Fin

advised by a lepal officer of the Marine Corps,that the . ~

_ missing witness was on military duty in Vietnain find would

_ be unavailable for trial. On ‘the bagis of this evidence, *

the Court of Appeals upheld :the trial judge’s finding that

the witness was unavailable as a matter of law. @eccord. *

ingly, the admission of the witness’ beptiat leer» was |

- found to be proper. fs 2k :

- The unavailable witnes¢ i in ca v. « Ashtora, -71 Cal. i

_Rptr, 619 (Ct. of App. 1968), had testified against defend- ~

. ant in a-retrial for’ robbery in. the second degree, and been =

" cross-examined at a’preliminary héaring-and a prior trial.

At the time of defendant's | second trial, the missing wit-

ness was at a convention in Florida, and was thereafter - -

“plannin ‘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 pecond trial until the

_witess returned to California, it upheld defendant’s con- .

viction on the ground that he was notdeprived of his full _

_ Sixth Amendment right of ‘confrontation, but only the

opportunity to have the trier of fact observe the witness’

-demeanor while being subjected to. interrogation.

= In Coldwotent v. ‘Brown, 417 F. 2d 1169 (D.C. Nie. 1969),

‘2 former- English teacher sought, review of ‘a proceeding :

in which he wag discharged from. civilian service with the. .

Air Force for having made unauthorized statements to his

Students. ~The students were foreign military officers who ~

had subsequently returned to their native couritries 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 \.

» 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 unfairness at the ne

hearing amounting to a yiolation of the Constitution. The .

Court noted that the Civil Service Commission did not have ©

subpoena ewer to compel oe attendance of — and

a‘

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as = eee Re = Vike

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is further noted that these fo ion students were hat under

pe - control of the Air Fo |

- Cases which have found that aves diligence had fot beak:

exerciged obtain thé presence of an absent, witness, have -.

: involved mats ions where the witness might have been 3 nS

"0° the j n (Holman v: Washington, 364 ¥. 2d 618.[5th +

Cir. 966), Wilson v. Bowie, 408 F. 2d 1105 [9th Cir. 1969);

- and. Govesnment of Virgin Islands v. Aquino, 378 F.°2a'

~ 540, 551 [3rd Cir. ‘1967}). In Aquino, for example, is ;

- ~ witness was a stewardess on a Savintened freighter. feu: ig

court théfe held:

“So far as the record shi tavdhore. the waiclate

ant might have been residiig continuously j in the Vir.

gin Islands ever since the -préliminary hearing was

Ae held. She might have, been aboard a vessel which was

* . in St. Thomas at the time. of trial. In these circum--.

. | stances’ it cannot be said that the prosecution satis-

_ 2 factorily’ established the burden’ which rested. on it to-

‘show that she was unavailable at the time of trial. nae

(emphasis added) eae

_. Im the instant case, a ‘sufficient-showing-of Holm’s’ un-

'. gvailability was made, in view of the more than 4,000'mile —

distance between _Ekskogen, Swed ‘and the place of trial,

. and the witness’ immunity from ny form of, process, intra a

or interstate. : | h

‘The court helo stated that it did not wish to- ‘chrioaden os

‘the exception, to the confrontation clause”? relating tou

_ available witnesses (27a). ' However, the Second. Cir-

‘-* .enit’s decision has ‘extended the application of ‘Barber to. |

' “+ witnesses domiciled abroad, in relation to a trial occurring

' even before Pointer v. Texas, 380 U.S. 400 (1965)* in which 4

_. (as shown below). no conceivable prejudice resulted from i

the use of the disputed dc apieaes :

: "This Court stated in Berger v. * Caliioula: 393 U: S. 314 (1968),

that Pointer \ v, Texas asseag apeine the decision 1 in Barber.

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_ Even assuming arguendo ‘that ‘the gopd faith efforts g

made by Tennessee at Stubbs’ retrial were insufficient and =.

_ that the rule of due diligence requires a request to be sent =~

_ to a Witness® permanently residing on a foreign continent,

, the error of reading the. prior recorded ‘testimony into the

'- record at the rétrial would have been harmless. ;

to come to Tennessee, his prior testimony would have been

4 « shooting of his wife and his own injuries especially sirice . .

| Stubbs’ identity, the ownership of the gun, and the fact of . 0*

the kidnapping were corroborated - by Stubbs himself .

| (81a, 96a). ee ees ae

j - It should be noted that respondent Stubbs took the stand —

at. both re once when Mr. -Holm testified in‘person and _

_ the second time when the testimony was read into the

= Tecord.~ Counsel in 1954 and 1964 adopted this strategy::

. Thus, it is apparent that Stubbs would: have testified ‘in

1964 whether due diligence had%esylted in'Holm’s.appear-

-. * As previously noted, this Court in Barber referred solely to #

. Tequest to “federal authorities,” as. did Judge Aldrich of the Tenth .

iy who had dissented in Barber below. (381 F.2d 479, 481.

o? .

ae

- aipealibae: would have eis. Stubbs’ testimony ends

. imperative—or (as actually happened) in, the Teding ao

his prior testimony. oes

-. he’ court below set forth only one way in which the -

trial. should -have been handled differently by counsel— ;

_eFoss-examination of Holm as to whether Stubbs had -.

_ “gained [the Holms’] sympathy during the course.of the

trip and in effect became their guest’? (28a). This theory .

- has no relation to respondent ’s. due diligence claim. Even

_ if Holm had ‘returned to Tennessee, counsel ‘at the 1964 -

trial did not indicate (contrary to the iritimation in the

_ decision below at 28a) that they’ would have questioned

’~ Holm_about any increased amicability on his’ part or his

wife’s toward their kidnapper. , The questions listed . by

meg thenr related to other matters ( 73a-74i). ’

‘Moreover, the ‘‘guest’’ theory is "wholly refuted by the °

record: The reason why counsel in 1954 did not pursue _

this line of questioning is plain from Holm’s testimony.

Stubbs had stated that when he had his gun pointed at Mrs.

Holm’s face, she suggested that- he keep it out of sight _

-(97a), and that the Holms had. promised to give him:.

no trouble (84a). In order. to: dispel ‘any intimation that

the Holms had changed their attitude towards him, Mr.:

_ Holm was put on oe stand in rebuttal and asked the fol--

; lowing:

* “Mr, Holm,. froin the time that you left ‘the roadside |

park until this occurrence near: Blountville, ‘was the .

> relationship friendly between you and your wife and .—

the defendant Stubbs or were you and. Mrs. Holm |

afraid of him?” (104a) — :

“He answered: vo oe ae

a “Ne;Sir, there was no friendly relations. ie i

“*It is significa that 1964 defense counsel Mr. Haynes, far

ied indicating that he would have asked such a question, objected

, to this question and answer beg admitted into evidence (104a).

wo

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Sk te gee Oy

This statement is corroborated by Stubbs’ own testimony: -

that he was hit on the head as they drove along (85a, 98a):

It would therefore have been clearly inadvisable to elicit

- from Holm more testimony which would have undercut the

s*defense theory stillfurther, and fixed Holm’s words in the ._

jury’s mind even more firmly.* eaae |

The court below rejected the application: of harmless

error’in this case on the erroneous assumption that Holm

was ‘“‘not questioned’? (28a) concerning the ‘‘guest’’

theory, which it characterized as having ‘some plausi-.

“bility’’ (28a). In ruling. that the ‘1964 record was in-

sufficient to sustain the Tennessee conviction-because an |

“allegedly reasonable hypothesis as to the shooting might

be conceived, the reasoning of the Second Circuit suggests.

an analogy to the rule that evidence.is insufficient unless _

all reasonable hypotheses except guilt are excluded. Sce_ -.

e.g. Battles v, United States, 388 F. 24.799, 801-2, 0.3 @&

and 5 (5th Cir. 1968). tate a -

However, four’ other circuits have held unequivocally.

that it is not necessary to preclude every plausible theory

except guilt in order to pphold a conviction. United States .-

y. Boyle, 402.F. 24 757 (3rd ‘Cir. 1968), cert. denied 394;

United States v.-Chappell, 353 F.2d 83 (4th Cir. 1965): -

United States v. Luxemberg, 374 F. 2d 241 (6th Cir. 1967) ;

ro) : ry

*Trial practitioners \ avoid continuation of cross-examination

under circumstances such. as these. See “Preparation and Trial,”

__ by John Alan Appleman (1967 ed.), Chapter VIII, “Principles of

Cross-Examination,” Section 12: “Contrary to lay beliefs; a witness

who knows what he is talking about and who testifies to the -strict

_ truth is not'vulnerable.to cross-examination. - In the first place, most

advocates. are pretty conscientious men dedicated to the. quest of

justice. Even if. it were possible‘to shake the testimony of such a _

person in some minor respect, or to embarrass him upon the stand, -

_ they would not feel that their duty to a client réquired a betrayal of

their oaths as.officers Of the court. ... . But even those counsel who

, did not maintain.a like standard of principles would find such a _

witness well able to handle himself, and a cross-examination-under -

. those’ ciféumstances would merely reiterate the testimony: and create

- a greater impact upon the jury.” - - .

° . t

iy aA ae ae Aa Meo ana

o =

ba ee Pht READ

ae Nha UR aA os thd

* come of respondent's trial.

of Cent Stubbs’ first trial did not in fact deprive respond- __

: recorded at this trial into respondent’s retrial. _

. was ne¢essitated because ‘the United States District Court

6 1964).

Meera he i aaah eNO lla

\. =

oe 6

| Bailey 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. 2d 117 (10th Cir. 1968),

"cert. denied 393 U.S. 1003;. Golubin v: United States, 393

'F. ‘2d 590 (10th Cir. 1968), cert. dented 393 U.S.. 831.

“Indeed, the Second Circuit has rejected the Battles rule

-for federal criminal convictions (United States _v. Grun-

berger, 431-F. 2d 1062) and thus the creation of such:

stringent requirements for cross-examinations in State

court trials is unwarranted. — :

. To rule that the claimed error at respondent’ 's 1964 trial

was not harmless because of the ‘ guest” hypothesis, .

reduces ‘toa nullity this Court’s rationale in Harrington .

‘v. Californid, 395 U.S. 250 (1968). The failure to crgss- _

examine as to a theory without any credible @ pport in.

the reeord is not an error, cannot support a claim of

-error,; and has no nagarace of having changed the ont-

} POINT a

‘Since the tardy. appointment af counsel at panery

ent of effective assistance of counsel, no Sixth Amend-

ment right. was violated by reading testimony

"Respondent Stubbs’ second trial for.murder in ie arenes

. for the Middle District of Tennessee vacated Stubbs’ ‘first

conviction, solely on the ground that counsel was tardil

. “appointed. *_ Respondent erroneously. concludes from this

circumstance that even if due diligence were not in quies-_

ae, Holm’s testimony would still have been. inadmissible

in 1964 mepaie the right of. confrontation was not a

r

© Stubbs ¥. Bomar, Civil Action, 3585 (M. D. Tenn., Filed Jan.

. *

“47

_ inally satisfied. ‘However,’as was conceded by the Second

Circuit in the case at bar, the Tennessee District‘ Court |

decision in itself ‘‘would’ not establish the ineffectiveness :

. of the cross-examination of, Holm . . .”? (28a).

~ Chambers y. Maroney, 399 U.S. 42 (1970) set’ out the’

applicable - standard for determining whether tardy ap-

pointment of counsel has resulfed in depriv ing a deféndant

of his right of-confrontation. Such late appointment does:

. not per se require reversal of every conviction, nor an

evidentiary hearing to determine whether the right to

counsel has been violated, ‘ It must be: shown™that preju-

' dice. to the defendant in fact resulted. = 4 .

_. “This Court noted in Chambers that there was no charge j

that counsel was ‘incompetent or _in@xperienced”? (399 : |.

US. at 53). Nor has such a charge been made as‘té re-

-spondent Stubbs’ ‘first trial counsel. Resjiqndent was rep-

resented by three. attorneys, and: the recorded testimony

of Holm read in its entirety into the 1964 trial transcript

(37a et seg.) demonstrates that the questioning of the com-

Plaining witness was capably handled. _

_ Mr. .MeInturff and Mr. Taylor, who were amorng\the

three counsel in 1954, made numerous objections during

the course of the-direct examination of Mr. Holm. They

objected to leading questions. (41a, 46a, 47a); to physi-

cal descriptions of exhibits’ which might prejudice the :

jury Tala); to introduction of allegedly immaterial testi-

‘mony calculated to build up sympathy for Holm (38a); to

questions asked without proper foundation (¥ Wait-a-min-

ute, there has been statement that she said that’’)

- (49a); and to exhifits improperly offered. into evidence

(““We/except to th&t unless it is shown thatthe conditions

as portrayed in fhat picture existed on this day of June

ination, counsel: attempted to’ show .that

On eross-e

respondent had no intention of killing anyone. Mr. Taylor

questioned olm' closely—‘Now, at that time there was

ETO W (SOM OC, Re

OUT A IR Be i a oat .

| 18

nothing to have prevented him from‘killing you of killing

your wife, if he had wanted to . . .1” (61a, 62a). Counsel

also attempted to show that respondent ’s only motive was

to get a ride, not burglary (‘‘At no time on this trip ~

- did. he maké any demand for your money?’’) (63a) ; (“In

fact, he told you and your wife both that all he wanted

was a ride to Bristol . . 1”) (64a). ;

. That Holm did not change his, story pursuant. to these _

- questions results not from any defect in the i inquiries, but.

from the fact that Holm was a strong witness, bereaved. -

and himself injured, with no motive to lie. No amount of

preparation on counSel’s part, such as research on Holm’s

past life, would have weakened this direct and-uncompli-

‘-eated testimony. Holm was, as Stubbs himself testified.

(80a), the victim of a coincidental meeting. with Stubbs, at -

. a roadside picnic table. ; |

‘It is also significant that the statements of reapondeat? 8

later’ attorneys at the retrial as to how they would have.

handled the first’ trial on cross-examination (73a-74a) do-

not point up any significant errors in technique or strat-

egy. Indeed, they adopted many of the 1954 objections:

which had been sustained (49a, 50a, 52a, 56a). Most of the °

suggestions offered by the later counsel involved . merely .

trivial points, except that counsel would have asked Mr.

Holm whether: he was the beneficiary of his wife’s life insur-

ance. However, as a matter of trial strategy, counsel at

the 1954 trial apparently felt that’ this would antagonize’

the jury. Mr, Holm had himself been shot twice in the —

face, and such an insult to him would only have empha-

sizéd his: tragic situation. :

While the court ‘below did not suggest that Mr. Holm ..

° shouldhave been asked about his wife’s: insurance, it

' found that the cross-examination was fatally defective be-

_ eause counsel -had failed to question Mr. Holm as to

whether the idnapper had been made “welcome” at the

end: of their journey (28a). _ However; as previously

: . 5 ner

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shown, Holm had testified that there were no friendly re-

lations with Stubbs (104a); thus, exploration of this sub-

ject by defense counsel would also have been rejected on

strategic. grounds.’ ° |

The standard by which the performance of counsel is

to be assessed should not be one which Tequires minute —

': inquiry into what counsel has done, or one which pre-

_ sumptively -invalidates the performance of counsel, Rep-

. resentation should not be held -inadequate unless it is ‘“so

‘lacking in competence: that it becomes the duty of the

_eourt or the prosecution to observe it. and correct it.” _

Williams v: Beto, 354 F. 2d 698 (5th Cir. 1965) ; Diggs v. —

Welch, 148 F. 2d 667, 670 (D.C. Cir. 1945), cert. denied —

Nothing in this Court’s opinion in Chambers altered

this standard, or created: any presumption that counsel

was ineffective because he was tardily appointed. Such-a.

presumption would magnify claimed errors or disagree-

ments with the judgment of counsel into constitutiénal -

defects simply by attributing them to lack of time to. pre-

pare. Indeed, precisely such a confusion in- analysis oc-

_ curred-in the case at bar, where the Seeond Circuit ap--

parently attempted -to connect the absence ‘of cross-exami-

nation on the ‘‘guest’’ theory to tardy appointment of |

competen{-ceunsel, even though questions as to whether -

‘the Holfis had welcomed: Stubbs would have needed no.

advance\yesearch time. a . a

Respondent Stubbs’ 1954 trial preserved not’ only the °

opportunity to cross-examine, but also all the other. as- —

pects of the right of confrontation. ‘Stubbs and his counsel

confronted Holm personally to test his recollection, to -

sift his conscience, to compel him to‘stand face to face

with the jury so that ‘his demeanor could be observed, and

to compel him to testify under oath with knowledge of the ”

penalties for perjury. .See California.v. Green, 399 US.

8

om, 400. US. 74 [1970]) was wholly fulfilled.

149 (1970). It is clear that the purpose of the a Cates

tion clause—‘‘to advange a: practical concern for the aC.

curacy of the truth determining process’’—(Dutton ¥..

%.

ie Shs! ~~ CONCLUSION’

~ For all the foregoing reasons, the decision below ;

. should be reversed.

"Dated: New York, New York, February 23, 197 2. .-

Respectfully submitted,

Louts J. ae |

‘ Attorney General of the

State of New York-

Attorney, for Petitwoner

SaMvEL A. Hrsrowrrs .

_First Assistant Attorney General

: ican 1. Moe. 2.

Assistant Attorney General

Srantey L. KANToR ©

—— — > Deputy Assistant Attorney General tes

of Counsel