Respondents Brief — Mancusi v. Stubbs

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IN THE

Speen 4 Ss Learn amen e pare A

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lt No, 71-287

‘SUPREME COURT OF THE UNITED pe ES |

’ a cook . . ' - - ; . | _ _

‘ +, | October Term, 1971 BILE

cme RODAK ce

| VINCENT R. MANCUSI, Sujierintendent of Attica

- Correctional Facility,

are a Bs, Petitioner,

against . 7 °..

_ WILLIAM C. STUBBS,»

4 - —

_ BRIEF FOR RESPONDENT AND APPENDICES

- .

BRUCE K-CARPENTER

- .Attorney Jor Respondent

Woodin & Carpenter

‘14 Lester Building

a _ .. 57 Kast Fourth Street (_

Dunkirk, New York 14048

oS BATAVIA TIMES, Law PRINTERS, m « ‘ aie

BATAVIA, &. Tf. . . Po

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Respondent.

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’. SUBJECT INDEX.

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PAGE .

be en oe over eer III -

Table of other authorities ..... eeeh eat eae an ee os 605 IV

- Statement of case eo cited Sous ee cha aqesviedes + 2

Argument .....:..... ea eee ie eo ee aeTere a

. Point I: The respondent was deprived of his right.

‘to be confronted with the witnesses against him by

the reading at, his Tennessee trial of the previous

~ testimony of a witness who was residing in Sweden’.

- and whose presence at trial the prosecution had;

made no effort to obtain ek eGucade Se aweks tes 2

Point II: The admission into evidence of the prior

‘recorded testimony was- harmful . error; the’

respondent’ had been deprived of the effective |

assistance of counsel in the cross examination of ,

. the witness atthe first-trial ...:......0<.055.5-5- 8

_A. Harmless error issue, in general ... oie dle: & 2s . 8

B. Binding effect of Stubbs v. Bomar ....... ‘ya's DB

‘C. - Inquiry to be made in deterinining’ whether mon,

' error harmful .......0...-. 2022s eet e eee. 11

- D. Cross examination of Mr. Holm as inadequate 13

Conclusion Sepeieeaaien aan ste sO es peux

Siem A ta ae

Tabular summary of testimony at napcasdaal Ss sec-

ond Tennegsee trial [arranged in order called] ..... la

~~ Okley Feathers Ea some ee ee ee ee ia

Frank Williamson eer i eae ete 2a

Jim: Pendergrass. a Rea 2 arnt eae aes pe ee

-- Burl Q. i ewe rere eres chee 4a

. Bernié Webb oe oh ea EE a OR MYO 5a

mn ; ad

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2 NSRP

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Say 2 heer atm Ee eM at

ETDS OO, per La GSW arn

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= %. md ‘ £98

ROMA ie NEE So Saath « ae secaiadd

ae 2 Gordon M. Blessing Poets toss aches. ee eeeees.. 18a

ol: - Defense. counsels’ objections to reading testimony from |

2 a [William C. ‘Stubbs; joint appendix, A. 5)

/ |

_ John-O. Marcy .... ree s Maeectusas oe oad

o-J.L. Seahorn .. 2.2.00... 0.650002. eiethe ts baaee

H. P. Montgomery ..... i oe

Roy Edwards ......... owes eeaeees * choddess ett

A. Ho Hurd . 2.02 5.citedscccsedeceecettedones

» Charles. C. Wagner Suds eWea ves pet isaasagsen ce 118

Subpoena’for Mr. Alex Holm vat unde otha: ot MWe

» Herman Conway Smith .... Syeegla last _s lla |

Franklin Talmadge Buelianan Peas ee Lees Da.

-Chartes ‘Harkrader, Pt rr eeeee ewes 13a :

former trial wees ereee Rebs seb Ps keen es Pee | ie

| [Alex Hotm:; joint appendix, A. 36, 103]

Donald Stubbs <.)...06..00.0ceeteeeeeeees 18a

Appundix A - oe *

Tabular summary ‘of testimony at fenpondent’s

? second Tennessee trial [alphabetically arranged]

Blessing, Gordon M. ..... io nentaw ean nes 13a

Buchanan, Franklin Talmadge ere Rete. 13a:

Charge of ‘the trial judge. ee ee ere

Defense counsels’ objections: to reading testiinony

from former trial .........\- ieee eeR ee oS --« 14a

_ “Edwards, Roy: ....--. seoe Rca caus are . 9a

' Feathers, Okley Dlten iene er oe me Code ee ae

Harkrader; Charles, Jr. Saar: eecrrie 13a

Harris, Elena re Ser ee irae es 18a

~~ Objections of defense counsel to — testimony

' from former trial ..... ‘

Pendergrass, Jim, eee teaua ee f

Seahorn, J. eee seetaatenees gare

' Smith, Herman Conway , |

Stubbs, Donald ina wk eee eee ass ate ageweeseectens

[ Stubbs, William C.; joint appendix, A. 2]

cana for Mr. Alex Holm... i... eee. ... Lla

i Aoavite B. eo

Order, ey Bomar (U: S. D.C. M ‘D. Tenn) |

TABLE oF CAsEs.

: aS ae eee ees ein id -. 12

Barber v. Page,-390 U. 's. 5 Ea Sear e wee 7,8

Berger v. California, 393 U: S. 314 .:.:.....0. 0.0. 000% 5

Brookhart v. ee ee as ertiw eileen eC ae

_ Bruton v. United States, 391 U.S. 123 .2..2.0....... 2

California v, Green, 399 U.S. 149 psitibie aa feo P eee ee

‘Chambers v. Maroney, 399 U. S. 42 ........ can ae ee 10°

' Chapman v. California, 386 U.S. 18 ....2.....5..... 12.

— v. —— 380 ist eT Se ee Seen A oe Ie

Das ee ste ea ae ee

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PAGE

_ [Holm, Alex: ; joint appendix, A. 36, 103] . =:

- Holm, Alex, subpoena for ........ eee aah . nase dla .

Holmes, Burl Q. Wee eeaaa se iee xe a errr ‘ da

Hurd, A. H. ........0..01- se vaveess eeeteceeet 108

Marcy, John O. .:....... aetecte Leseeeecesess C8,

: Montgomery, he Be oosa tec eenteavscntnsnnects 8a

of

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aultinde a ade fist ise Sas

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bls OM

hit bil atd hi | athe am SG at 38, a

- Dutton v. Ev ans, 400°U. S. 74

‘Glasser v. United States, 315 U.S. 60 -

. meattos: Vv. ree rca 156 U. % 237

IV. _

Fahy v. Connecticut, 375 U..S. 85 ..:..............

Illinois v. Allen, 397 U.S. 387 ......0........0...

Le Baron v.-Crombie (1817) 14 Mass. 234 .

"aay. - Donavan, 13 NY 2a 148, 243 N.Y. S.2d 841: 13

Pointer v. Texas, 380 U. S: 400 2000. eee. 2, 3,17.

Regina v. Scaife Sear 17Q. B. 238 oo eel AZ.

Stubbs v. Bomar, (U.S.D.C. .° M.D. Tenn. 1964) .9, 10,

‘20a, ‘28a

Stubs v. State, 216 Tenn. 567, 393 S. W. 2d 150 3:3, 13

United States ex rel. Stubbs v. Mancusi, 442 F. 24-561 . a 9

ot sollte v. - Seldon (1826, N. Y. ~ Ct.) 6 Cowen 165 . 17

Sixth proven rain to the United States Constitution /#

_ Standard Highw ay Mileage Guide, Rand McNal ae

” _ SE waa Was eek eda as 6,7

The New York Times, Encyclopedic Alkane, 1971 a

5 Wigmore, Evidence § 1367 (3d ed. ese fr kite eye: «Sam

8 UG. 8.0. $1788 - 3.2... ae nen yard eye ach as aank 7,8

‘SER esa We Gar Re cs 6k oe Si eat Pocd ise igen ener ey Ty a:

"1948, Pub. Law 646; 62 tat: APT ASIAS ema ce ee

- 1964, Pub, Law. 88-619, 0 (a); 78 Stat. 997 eee se .

; ‘a earlier Tennessee ‘conviction was used by the State

' inereased punishment following a New York conviction.

for habeas corpus relief to the United States District Court -

- for-the Western District of New York. In United States-ex.

for the Sétond Cireuit rev ersed, with one judge senting. oe

the devision denying relief.

"IN THE

SUPREME COURT OF THE UNITED STATES ‘ 7

, eo

% » Ocnobin mc 1971.

No. 71-237

| VINCEN T R. MAN CUSI, SiuexSnliesibent of Attica:

ie eh 05 Correctional Facility,’

; - Pitilioner.

‘desindi. ae a,

_ WILLIAM C. STUBBS, - 3

ee: | Respondent.

- >

STATEMENT OF CASE -

of New York to give the respondent: William C. Stubbs '

After exhausting his state remedies? Mr. Stubbs applied a

rel. Stubbs v. Mancusi, 442 F. 2d 561, the Court of Appeals

Warden of Attica Prison.. As such he ‘had custody of the respondent

Stubbs. Later the name of. the institution was changed to "Attica

The present superintendent i is Ernest L. Montanye.

"* Western District of New York, dated June 30, 1969; 5 — as

_ Appendix D, p. 14a, to petition or certiorari).

: Whei this sasiiion: was begun, Vinetut R. Mancusi was ‘the .

Correctign nal Facility’ and the titlé “warden” to “superintendent”.

2 See the decision of the United States District Court for the

@ *

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i

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_ The court below held that the Tennessee conviction had

been obtained in violation of the respondent’s right to con-

-frontation... At the Tennessee trial the prosecution’s pri-

mary witness did not appear, but earlier testimony of his

“was read into evidence. No effort had been made by the

. prosecutorial. authorities in Tennessee to obtain this wit-

ness’ attendance at the trial. ‘It was shown only that the _

witness had moved to Sweden. . |

| { Srap mae a

- POINTT ~

THE RESPONDENT, WAS DEPRIVED ‘OF HIS RIGHT TO BE y-

FRONTED WITH THE WITNESSES AGAINST HIM BY°THE READING AT:

-. gis TENNESSEE TRIAL OF. THE PREVIOUS TESTIMONY OF A WIT--

NESS WHO WAS RESIDING IN SWEDEN AND WHOSE PRESENCE AT

as TRIAL THE: PROSECUTION HAD MADE NO EFFORT TO OBTAIN. -

...'This Court has steadfastly held that the Sixth |. Amend- |

‘ment right,.of an accused to confrontation applies to the

-” States through the force of the Fourteenth Amendment."

‘Pointer v. Texas, 380, U.S. 400, 403; Douglas v. Alabama,

380 U.S. 415, 418; Brookhart v. Janis, 384 U. S. 1,4; Bar-

ber v: Page, 390 U..S. 719, 721; Bruton v. United States,

391 U. S. 123, 126; Illinois v. Allen, 397 U. 8. 337, 338;

- California v. Green,.399 U. S. 149, 150-151; Dutton v. Evans,

> “8 The Sixth Amendment to the United States Constitution provides

(in part) : “In all criminal prosecutions the accused shalT enjoy the

right’. . . to be confronted with the witnesses against-him . . . and

to’ have the Assistance of Counsel for his defenee.” | The Fourteenth. °

Amendment provides (in part): “. . .’nor shall any State deprive °

‘any person of life, liberty or property, without due process of law’

-

of

oe

e~ .

400 U.S. 74, 79: - Nelson v. O’Neil, 402 U. S. 662, 665, 29 Le.

" Bd. 2d 222, 226.4

Pointer v. Tezas, 380 U. S. 100,. involved use at. trial of

« the testimony of a robbery. victim. It had. been recorded

ata preliminary hearing at which the defendant was with-

_ out counsel and did not _try to cross éxamine the victim.

- The Court held that the right of confrontation guaranteed.

. by the Sixth. Amendment. and ‘carried into state criminal

“eases by the Fourteenth Atendment was denied Mr.

Pointer: “There-are few subjects, perhaps, upon which

this Court and other courts have been more nearly unani-.

‘mous than. in their: ‘expressions of belief ‘that the right of

confrontation and erpss examination is. an essential and —

.fundamentat requirement for the kind of fair trial whieh i is

this country’ s constitutional goal’ (380 Uv. S: 400, 405).

“ in Barber v. - Page, 390 U. S. 719, this Court held’ that

Oklahoma could not use the preliminary hearing transeript™

of the testimony of a witness, who at the time of trial was

incarcerated in a federal prison 225 miles away in Texas.

4 The argument’ is made in the brief of ‘fhe’ District ’ Attorney ae

Monroe County, Amicus Curiae, that Pointer v. Texas, 380 U. 8. 400 |

should be overruled, as improperly imposing a federal hearsay rule on

the States. This is not what the Court held in Pointer (sf 380°U. S

400, 407 and Dutton v. ‘Evans; 400 U. S..74; 80, 105; footnote 7). But

‘even if, as it is argued, “(t]he answer to the problem we. feel is to.

apply the Fourteenth Amendment’s ‘due process’. test without specific a.

reference to the Sixth Amendment” (‘Amicus Curiae brief, pp, 4-5),

‘reverting to such a rule,§vould not affect the outcome of: the present .

case. As will be shown, the. present case is not significantly different

from Pointer v. Tezas, 380 U. S. 400, or Barber v. Page, 390 U.S. 719.

In those cases the - late Mr. Justice ‘Harlan, who ‘forcefully argued |

” against the so-called Fig nena doctrine and for the position

apparently favored by the Amieng Ouriae); nevertheless, concurred in

the results, holding that the petitiover i in Poiriter was deprived “of a

right of ‘confrontation’ thelr by the Fourteenth Amendment” (380

_ U.S. 400, 408) and that State failure to attempt to obtain the

_presence of the. witness invo ee denied due — (390

TY, S. 719, — go ee

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The accused ‘iii and the witness Seid acigtoalty bicen

- ¢o-defendants represented by. the same attorney. . At the

preliminary hearing the witness © ‘waived his privilege

against self-incrimination. The attorney then withdrew as _

to him but continued to represent Mr.. Barber. This attor-_ -

ney did not cross examine the witnggs at the. preliminary

hearing. The State argued in Barber that the introduction

of the transcript was proper singe tlie witness was outside ||

the jurisdiction | and therefore unavailable at the time of: °

P _ trial, and that the right of cross examination was afforded. ~

eae petitioner Barber at’ the preliminary hearing although

- not utilized then by him. For the purpose of decision it |

was assumed: " “that petitioner made a valid -waiver of his ae

right to cross-examjne Woods at the preliminary hearing, oe

‘ although such an assumption seems open to considerable .

- question under the. circumstances. [Footnote omitted:};

_ We start with the fact that the State made absolutely no.

: to obtain: the presence of. Woods at trial other -

ae than to ascertain that he was in a federal prison outside’ :

-@ . Oklahoma” (390 U. S. 719, 722. i ee adsl

a Court noted that with respect’ to a prospective wit.

ness currently in federal’ custody, 28 U. S. C. § 2241 (e)

- (5) gives federal courts the power..to issue writs of

_ habeas corpus ad téstificandum atthe. request of state ™ )

- prosecutorial authorities and that tHe federal Bureau of

‘Prisons permitted inmates of federal prisons toe testify

- ‘in state court’ criminal proceediifgs pursuant. to wi ts o

habeas corpus ad testificandum issued out of state courts.

The court held: “In.this case the state authoritiés made -

no effort to avail themselves of either. of the above alter.

native means of seeking to secure Woods’- presence at.

petitioner’s trial... The Court of Appeals majority ‘appears ,

. to have reasoned ‘that because the State would have had

e to request an exercise of Gineretion on the _ of federal

- 8 fi .

Seat sedan NE UG: eairceen ci

“i

- authorities, it was under no ‘obihgsition to make any such ‘

request... -Yet as Judge Aldrich, sitting by ‘designation, ‘ag

xs pointed , out in dissent below, ‘the possibility of a refusal .

is not the \equivalent of asking and receiving a rebuff” |

381 F.. 2d, -ar 481. In short, a witness -is not ‘unavailable’ . ;

: for purposes of the foregoing éxception +6 the confronta-'.. |

. tion requirement unless the. prosecutorial authorities have

made a good-faith effort to obtain his presence at trial. —

‘The State made no such effort here,. and, : go far. as this

“ecord reveals, the sole-reason: why Woods. was not present

to testify i in person was: because the State. did not attempt, a

_ to seek lus presence.. The right of confrontation may not

be dispensed ‘with so ‘lightly, ” (390 U.sS: 719, 724-725).

. Barber v. “Page, 390. U.S. 719, has been given fully

retroactive: application. See Berger v. California, 393 U.:

A. 314, in which the Court: noted that; some effort, although —

«ineffective, ‘had been’ made on the part of the prosecution nae

” to contact as a prospective witness the victim of the alleged

/\robbery and kidnapping; he was in Colorado at the time.

fof the accused’s California trial. . - oe

la the present case the dies prosecution eye-witness to

the homicide was-a Mr. Alex Holm.*' We can:start, as did .

the Court in Barber v. _Page, with: the fact that the State

of Tennessee made absolutely no effort to ‘obtain the

- presence’ of, Mr. Holm at trial. It only saw fit to ascertain

]_. that he was residing in Sweden. -This was established by

| + means of the: Gereastiaél of Mr. Holm’s. son, summarized .

§'The witness’ name is indeentty ited Holmes” in the a |

of the 1964 Tennessee trial: The testimony of.the witness Holm, as

~ originally given at the-1954 Tennessee trial and read at the 1964 trial ©

by the original court reporter, is reproduced in full in.the*joint ap-

'_ pendix (A“36-74 on rebuttal, A. 103- 105). The respondent William

Charles Stubbs’ testimony, as as defendant in the 1964 Tennessce trial.

. is reproduced in full in the joint appendix (A. 75-102). The testi-

mony of the other witnesses at the 1964 trial is summarized in;dppendix

"A to this brief; p. 1a, et seq? “The harmful effect of Mr. Holm’s tes-

| tenany 1 is discussed i in de i under Point II, ee A and D, bélow.

-

a5 ee igs Tt aot

' 1964 trial voluntarily. The respondent Stubbs’ right to

"* 2; The New: York Times, Encyclopedic Almanac, 1971, pp. .662, 664-5.

le on a ne w :

: ewan shetif, which had been sent down. by the prosecu- “

tion for.a deliberately futile attemipt. at service in the ©

: County of Mr. ‘former residence (see the summary” |

‘at-p. Ila, _— Bu is as far as. the prosecution

~ went. 8 oe; © 3 are age es

There is an * medeitredheloa assertion by ~one_of Mr

Stubbs’ 1964. counsel that the prosecuting attorney had—

_ stated at he would have Mr. Holm présext (p. 17a,below)

and that Mr.. Holm’ s son had ‘stated outside of the court- .

room that his father did riot even know the case was A ae:

: tried ote, Be) ae

The prosecution should have offered Mr. Holm. his ‘jean ee

ing expenses and asked him if he was willing to attend the . ‘

“be confronted with the witnesses ry him required no,

less. . , .

TH petitioner ¢ argues that requirement of a good- faith. -

. fot to obtain the presence of ‘the witness should be —

-- exensed because Mr. Holm was residing more than 4,000 -

.- milés from the placé of trial and because of “the witness’ .

imriiunity from any. form of -proéess, intra. or interstate’s

In this era of convenient. jet travel mere \distance. is no

- -deterent. The: petitioner apparently does not. question the

~ application of the decision in Barber v. Page, 390 U, S.

719 within. the: United States. ‘But. Honolulu, Hawaii is

. about, the same. distance from: Blountv ‘ile: as is Sweden.’

~s Petitione?’s brief, + The trial was heliin Blountville, Te mae

nessee, {appendix A, p-. ‘1a, below), which is near Bristol, Tennessee 5

(see the: testimony. of Captain Frank Williamson, siimmuarized at pp:

_ 2a-3a, below): Bristol is about 4,689 miles from "Stockholm, Sweden. —

- Standagd Highway Mileage Guide, Rand McNally; 1966, p. 46 column

* 7 Using the tables referred to in = Pp ing footgote, it is ‘about’:

"4 aia miles —_ Honelulu. : ee

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Distance was no factor. The prosécution. summoned Mr.

-Holm’s son more than- 1280 miles from his residence in

Texas, and°only to testify. that. his father was living in

-Sweden!® A further indication of the. hollowness of the 2

__ prosecution’ s efforts to secure Mr. Holm’s presence is‘the ‘ >

sending of a subpoena for him down to Texas, when it was

_ quite. apparent he no longer lived there bie 118-119; ap

ae A. P- lla, below). Se

3 Process, moreover,: may have fois available in 1964 to

corfipet*Mr>-Holm’ s attendance at trial. A broad construc-

ot has been given 1 to 28 U.S. C: § 2241 empowering 1 federal -%

courts .to issue writs, of habeas’ corpus ¢ ad testificandum }

er compel a prisoner’s attendance at a state ‘trial,. even. .

‘ though the statute does net expressly | mention state courts® 2

- Barber v. Page, 390 U.'S. 719, 724. A similar construction 7

could have attached to 28 U: S. C..§ 1783 which provided ee

- thé time of the respondent’s 1964 trial (in part):-“(a)

A court of the:United States may subpoena, for appearance ae

before it, -a citizen or a resident: of the. United States ge

who: . (2) is beyond the jurisdictio of the United -

States ne whose test#mony in ‘a cri |

. desired by the Attorney General . : =

not say that the criminal proceeding had to be pending

in a federal Court.. The statute did not purport. to limit

the pow er of the Attorney General to. “desire”, if he

chose, that the witness be subpoenaed to a nearby federal»

court for: later appedrance in a state ‘eriminal proceed-

ing. Compare the policy of the Uni States Bureau of

Prisons, to ‘honor writs of habeas corpu ad testificandum Ne

f See T. 58, et seq., “pimamattied. at pp. 4a-da, below, ad Standard .

Highway M ‘ileage Guide, Rand McNally, 1966, p. 46 column 4, ;

' * The pertinent provision of 28 U: S.C: § 2241 reads in part: ve 2 he

The writ of habeas corpus shall not extend to a prisoner unless... .~-

(5), It is necessary, to bring him into court to arias or for trial”

* See 1948, Pub. L. 646 ; 62: Stat. 949.

©

2s =

.

2

nee eee Le eco ae se

Q issued. out of state inatte, Barber v. Page, 390 U. a 719, -

7%. Following the. respondent’s trial Congress’ ‘amend

28 U.S.C. § 1783, so that now, “A court of the United State

_ may order the. issuance of a subpoena reqniring the ap-

- pearance as a witness befoge it, or ‘before a person or ‘body -

designated by it, of: a nationdl or resident of the United

States who is in:a foreign country, - . 2 2” (October 3, —

. 1964, Pub. L. 88-619, §10(a), 78 Stat. 997). Mr. Holm was ©

"a naturalized citizen of the United States (A. 40; T. Eee

and, thus, was amenable to this process. .

-Even assuming that the present case containgd ; no issue ef

-as to the effectiveness of the cross examination of Mr:

-. Holm at his first. Tennessee trial, .the respondent Stabbs |

* was: still deprived: of his'right to be confronted’ with the

witnesses against him. Barber v. Page, 390 U.'S.-719, 722; -

Dutton v. Evans, 400. U.S. 74, 85. -The ee ‘of tte

court below should = affirmed. - ae

+) pont

Poe ADMISSION INTO EtIDENCE OF THE PRIOR. RECORDED TES-

‘TIMONY WAS HARMFUL ERROR$-THE-RESPONDENT HAD BEEN DE-

: SRivep oF THE EFFECTIVE ASSISTANCE OF COUNSEL IN THE CROSS

EXAMINATION OF THE WITNESS AT THE FIRST TRIAL. = :

; ee * Harmless error issue, in n general. oe Lee

‘Itis absolutely. impossible to imagine that the ceponsltnt

_ William C. Stubbs would ever haye been convicted. without .

the ee and . testimony of Mr. Holm. Thé ood

Stubbs’s ‘aie the medical attention giv en >» Mr. bs

and’ to Mr. — the. ———~ of trial, e —.

>

_ ‘and his’ wife 0 he's sunimary of the Sashimi eiocedix Ay

pp. la-19a, below). ‘It is- ‘quite clear that if reading the prior

harmful error.

“ .

hala

“B. Binding eas of Stubbs v. Bomar.

11,. 1954; he was assigned three attorneys on July 8, 1954:

__the capital charge on July 12,1954.’

ary 6, 1964) ' Hon.- William E. Miller, District Judge, de.

elared null and void the. respondent’s 1954 Tennessee judg-~

. ment of conviction: “The Court is of the dpinion that the

in the Criminal Court of Sulliv.

“ap ppointed counsel lid not, have |

within which to prepare the néces

to trial, and as a result the petitioner was denied effective

: —Tepresentation_ by. counsel” ( p. 22a, below).

County in that his Court-

Mr. Stubbs was arrested on the day of the homicide, June

he was arraigned on July 9;-1954; and he/ went to trial’ on

a Boibbs v, Bower, (6.0. C.. MD: Sane

: evidence and the record show. that the Constitutional rights. ik

of petitioner Stubbs, hwere’ violated at the time of -his trial

uate. and sufficient time :

defense prior to going _ _

testimony of Mr. Holm. was—without going into the effec. ee

tivenses, of cross-examiination—error, it. was eritieal and .

- prejudjce to the totality of defense preparation from late

-appointnient’ of counsel.” United States. ex rel.. Stubbs y

Mancusi, 442 F. 2d 561, 564 (A. 23, 28). Nevertheless, it

may well be that the State of New York is bound by the ‘de-

re mr Reproduced as sana B, below, p pp. 200-2. ote. Rd

¥

The court below said: “Judge Miller’s decision, however, Ae |

even though it were binding on New York, would not estab-

lish the ineffective cross-examination of- Holm, but only the

m in Stubbs v. Bomar and that the decision makes un-—

Necessary meticulous examination of the record to demon-

a °. : . o : ; : $ : be : ) % 3

". strate the. cicuaypnee of the See T Re of Mr.

-Holm. esa! ‘ : Re se BY Se

f

| - The pétitioner biti unhat v. ‘Biabouéy Yy, 399: U. S. 42°

@ Which held, “. . .. we are not disposed to fashion # per se...

° vale requiring beectead of every conviction followmg tardy A;

appointment of counsel or to hold ‘that, whenever a habeas:

- corpus petition alleges a belated appointment, an eviden- .

_tiary hearjpg must be held:to determine whether the. defen-.

" dant has be n- denied his constitutional. right te counsel”.

- (399-U. S.. 54). The petitioner apparently attacks the —

_ decision made by Judge Miller in Stubbs v. Bomar in 1964,"

~ It does niot appear that Ate v. Bomar was. ever appealed,

from or questioned ‘by the Tennessee prosecutorial author-

ities, who; following .the decision, promptly awarded the

ses _ respondent Stubbs a new trial. At ill behooves the State of .

New York now to. challenge for the first time: this decision, ‘

especially when the State of New York is gelying for its An

_:, ereased punishment upon the respondent’s conviction at the

Presa! " second Tennessee trial, This conviction would never have | -

~eome into existence without Stubbs v. Bomar; it-is'a care-~

fully considered decision, undoubtedly quite cerrect, and

certainly proof against such ain unseemly and by belated attack.—~

~The. -respondent Stubbs was deprived of the ‘effective

assistance of counsel at the 1954 trial. This eonclusion

: = be avoided.by taking the. record to pieces.

The use of the rule of collateral estoppel i in criminal cases a

has been: clarified by Ashe v.- Swenson, 897 ‘U.S. 486: >.

” ‘Collateral estoppel’ is’ an’ awkward phrase; but.it stands -

for an. extremely important .principle_in—owr—adversary =

system of justice. Tt means simply. that when an issue of |

Jultimate fact has once been determined by a valid and

{ final judgment, that issue cannot again be litigated between |

* e

pes e nM Petitioners sig oa “Aeet

«

“a ; ee r, AOC ;: Se €

Sere Gene: Game £8 2 a

—~- i « r

ms ise parton any fare await 6 (397 U. 8. 436, 443- :

“445). ae :

Since it i is ‘established. that the rapnaniaties by: cua: :

*

in’ 1954 Was ineffective as a whole, it .is sinking to hyper-. ae

~ technical niceties to‘argue that the cross examination, of the

- only eyewitness was an island of effectiveness in a sea of

_ ineffectiveness. Clearly,. the- -respoiteat_Stubs’ 1954 coun-

set had. nothing | to prepare for, except the cross examina- -

tion of Mr. Holm, and except the decision whether to call.

Mr.‘Stubbs to the stand or. not:. There was nothing. ‘much

~ to-do during the other parts of the trial. except to sit and.” :

listen. ““The federal decisions have made élear that the.

rule’ of collateral : -estoppel in criminal cases is not to be. es

“applied with the hypertechnical and archai¢ approach of a

19th century pleading book, but with realism and ration

ality 2” Ashe v. Swenson, 397 U: S. 436, 444.- Realis-_

. tically and rationally approached, thé ineffectiveness caused

__ by tardy appointment of counsel in 1954.must have dimin-

ished seriously the effectiveness of the cross. examination v

-of Mr.: Holm. .. The State of New York,. which-is-in-privity

_ with the State-of Te: ennessee, is collaterally estopped from.”

‘elaiming that the 1954 cross examination was effective.

oa Amquiry to ay made. in n determining whether error

‘harmful.

| ‘Before discussing the evidence in detail it is important —

- to consider what factors determine ‘whether error is harm-

ful. The peti without support that the court

- below adopted ‘reasoning which “suggests an analogy to

the rule ‘that evidence is insufficient unless all reasonable

_ hypotheses‘except guilt are excluded”."* : This served 4s an

introduction to a string of cases havihg nothing to do with _

_ harmless error, dealing instead with what constitutes suffi-

8 Piitionsets brietp.15. "°F

~~... ‘j

— Fl

ee e \ :

-

: UD cote nan Gap a

‘ eient evidence to. eonviet under various talecad criminal

-—statate

The distinction heteipt a ihe eciaas: error issué and «’ ~

” saltieie of evidence issue is strongly drawn i in. Glasser vy.

Z United 1 Statés, 315 U. S. 60, which held ‘as:to” sufficiency of °

“evidetice : “Tt is not for us to weigh the evidence or to deter: — ,

mine. tle credibility of ‘witnesses. The verdict. of a jury.’

‘rhust: be sustained if there’ is. substantial evidence, ie

~ the view most. favorable to the Goyernment, to support it.” ~ }

(315. U. Se 60, 80) ; but ‘which also held+ “To determine the —~

: recise degree of prejudice sustained by Glasser. satesult

J Ol the court’s appointment: of. [his_ (ey 7 as counsel for v

et codefendant] is at on Hi

~- right the assistance: of counsel is ; too fundamental as

and atinckats to allow courts to indulge i in Y nice calculations . -

as fo thie amount of aiertnres arising. from its denial”. Sees 9

‘o. S60, 75-76). ey, ee

The court below was‘ tally. in accord: with this Court's .

halen on, the harmless error rule. Ps See Cl Chapman ¥.

California, 386. U.S. 18, in which it was held:. “There is.

little, if any; difference between our statement in Kahy-v.

Connecticut (375 U. S. 85, 86-87] about ‘whether there i isa ~

Of sibjlity that the eyidence complained of ~

might. have conti$buted. to the conyiction’ and requiring the’

; beneficiary of a. constitutional error. to prove beyond a rea-

sonable doubt that the error. complained of did not con-

ae tribute to the verdict obtained: We,.therefore, do no more

eS than adhere to the meaning,of our Fahy. case when we hold,

os. 7: 8 we NOW do, that before a federal. constitu ional error — .

: can ‘be held harmless, the ‘court must. ‘be ab ew declare a

ty iS “The only one. of the cases eaten pted, which even. etipbiay: deals ©

with harmless error, is Bailey v> United Hate, 410 F. 2d 1209, 1217 ©

‘Gath oH, *) cert. den, ays U. 3 933: z

b ; : t+ sores eae . fe te F :

me

belie that if was + Harmless beyond a reasonable doube” e

as

"The ‘thet ‘ha } in. i Sikerinittng whether the 1954 cross

examination of the witness. Hate was. ineffective is not we

“ phether’ the 1964 eS s-4 ipported ‘by sufficient ong

.evidence.. This is not an-iss ue. The question was ‘con- ae

‘4 eluded against the- éspondent on his direet appéal to the «|

a ee Supreme Court. Stubbs. v. tac 216 Tenn. 567, ;

| 7393 S. W. 24 150, 152. a Fi hee. . “

“Iti is for the jurors. solely alpon the basis of proper © evi- ££

dence, to decide the issye of guilt... Ina much-quoted pas- .

sage written by Judge Fuld for the New York Court of - -

“Appeals in Péople v. Donovan, 13 N Y 2d 148, 243 N. Y. 8. :

| 2d°841, 193 N. E, 2d 628, it was eloquently said: “It cannot. *

“be overemphasized that. ‘out legal ‘system ‘is. concerned as

' mnuch with the integrity of the judicial process as with the

~ issue of guilt or innoce ce. ' The constitutional and statu-

- .tory safeguards provided for one accused of crime are to .

- be applied in ‘all eases. The worst criminal, the most culpa- .

ble individual, is as much entitled: to the benefit of a rule

- of law as the most blameless member: of. society. To disre- .

aw Pomme of the Tule because. there is proof in the.

to persuade us of a defendant’s guilt would but lead

.to erosion of the rule and endanger the riglits: ‘of even —

who are innocent” (13 N Y.2d 148, 153-154)... Jk: ig ee ae

2%

Dp, ose examination of Mr. Holm as inadeipuate. : ;

ap: “Mr. Holm testified sar tdixect exaniination™ that while. he .'/-

and es at a roadside pienic area, near iperenee

° Oo

WAS read at. the 1964 trial Mr. -Holm’s direct ckumniuitiod _con-

‘sumed 33. pages of the transcript (A. 36-61; T. 174-207) ; eros con-

sumed 10: pages (A..61-67; T. P 207-217); redirect, 17 ‘pages. (A. 62-.

72; T. 217-284), to which thefe- was no crosé examination. -There iy

also were three pages of direct rebuttal (A. 103-105; T.. 284-287). to |

which there: were three questions . asked ja paces examination (A,

105 ; T. 287). pe z ee

' 7? .

* : = . ;

] . e « .

a on yee are ? ahs sd SALE ME Oe OE OF Te ti

*,

a

‘mac co e

. x ‘ - ‘ 5

Lake tian’ ani Wenianase they were diienacta by ithe datendant: | :

°William. C. Stubbs: (AL 43). A brief: conversation took .

es place, and then. the defendant walked away (A. 43). ‘When,

Mr. and Mrs. Holm were Just about to leave, the defendant

Stubbs came back with a gun in his hand (A. 43). Mr,

Stubbs said: “This is the way Lam going to eatch my ride, .

- to Brjstol aid I am gbing to do the driving” (A. 44). He,

threatened to kill both Mr, and Mrs. Holm if they did-not- ~

- get in the car (A. 44). Mr. and Mrs. Holm got in the back .

“seat; with Mr.. -Holm to the far right. (A. 45).. Mr. Stubbs.

: drove the automobile, steering with” his right hand gest

ere holding the gun.with } his left (A. 45). , ae

‘They drove through several Tennessee towns (A. 46. Af).”

All of ‘a. sudden, according to Mr. ‘Holm: “Well, he was

driving along, but he was just looking first one place and *”

‘ "then another and looking. at his rear mirror. When we .:

._ gét te that place he started shooting” (A. 49). “Q. When he « |

" shot, did he say anything, Mr: Holm? A. No, he didn’t say@.*

“. word. Q. Where did he hit you? A. In my face” (A. 50).

; “When he\ started shooting, I jumped up. and grabbed the

gun. . ” (A. 52). “Q. How ‘long did it take you te get —

that pistol away from ‘him? A..- It didn’t take no time. oy

When TI jumped on him Leni jerked: that Lcesen away there y

Wasa shot. went up” (A: 53).

“The car was still moving. “Well, he’ was trying to get

out, but, of course, the combination of the lock, he tried to

get. that lever down, he: tried that three or ‘four times.

; Finally he. found out it~went out. Then. he stepped on that .

. \ -brake.on the car and slid out backwards. ‘Q. What hap- ee

_ pened to the car? A. T got holt of the steering wheel and

: kind of whirled it around so it. “a hit the embankment,

- beeause it'was coming right nearly ac

“Q: How siioe after that was it until any person Honpees

oss the road” (.A. 55). - .

ee os

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° * ‘ ° 4 ' 4 > he . :

\ ie 4

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oe a . o “3X eee fae rp ene oid vik” ’ ’ } 4 4

$ : y “ * ~~ ea .

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Y “ . ’ im - J i

Peavey \ . 3 of i, ’

A "There was people fight ASR st looked a ‘It diant

Me et don’t think it |

.. The defense offered by Mr. Stubbs, who testified,aboth

sk half minute” (A. 59).

peas (AL 18: Appendix A, p. 11a, Delow);-was that while he’.

cae and hunger (A. 78, 80, 81)** he gained their sympathy dur-. -~

ing the coursé of the trip and in effect became their guest.

/(A.’82-83).- In response to a request from Mrs. Holm, Mr.. &§-

" Stubbs put the gun .down’on the seat beside him (A. 83). _

originally forced himself on’ the Holms.from desperatjon -

They passed a police officer, with no outery from the Hollns —

__ (Aiv84). | Mr. Stubbs began to relax (A. 84). ‘Then, as they»

ae passed # crowd of people (A.99): “It seems awful strange, %

3 but everything just seemed to be-%wful still and I remem- ae

ber a tree and it just seemed to come up just like that in

~ dear focus, but i in a reddish haze. I mean there was no pain he

. or nothing. . . — Iefelt a sharp pain that seemed to start .

in my -head and go ‘all the way: down’ thropgh me and I~ -

: reached up: with botli hands ard I heard this loud. roar, -

~ bang” (A. 85). Bleeding, Mr-' Stubbs — from the. -

2 ge (A), Py eRe ey a ey hag wie

3

2 -@ @

**

The 1964 trial jury was: instructed to acquit if jt t believed. 7

‘the theory of the defense or had a reasonable doubt of Mr. . -

sStubbs’ guilt (p. 19a, below). ‘Mr. Stubbs’ version of. what ae

happened ‘i is by no means incredible. On, the other hand,” -

parts. of Mr. Holm’s version are mighty hard. to swallow. ;

‘The trip began at: a secluded roadside picnic area and

_ €xtended over more than 50 miles of highway. Tf (as. Mr.’

~ Holm said) Mr. Stubbs started shooting without any provo-

cation by the Holms, why did Mr. Stubbs choose to ag this”

ora ae sit E thought ‘that there wouldn’t be much wrong with

getting a ride if I didn’t bother them. or take snything that they had

Or — (A: a1}...

tenes

. . e

LOLA GWE? 96 BOM LIST OE, BALE POLED EEE LO NOE CEG BEE LE a METZ

- . . ad

en wea Ginse ix’a coowd cd people: ciate aaan ib ehh in aa

“moving, and after he has begun to relax? Yet, if Mr. Holm Ss,

had been waiting for a chance. to try to seize the‘gun and

struggle with, Mr. Stubbs,’ ‘these are the exact. circumstances

. he would have been looking for. “2 ere Hea 2

Mr. Holm managed to get control of the gun, he said: ” by at

: just. reaching ‘for itand. jerking it away—after he had been. ao

. shot twiée-in-the face by Mr. Stubbs. It seems far. more « '

‘likely that Mr. Holm got controt-of the gtn by pouncing on -

it while his faculties ‘were _— and. when Mr. Stubbs ,_

. could be taken unawares. ‘ sae .

Holm’s testimony. cries. cout for vigorous: cross ‘examind- |

tion. A eross-examiner is fortunate to have a lying wit- -

- ness trip up on some minor. details in his direct testimony

“ ~ (such a. witness’ ‘lias usually rehearsed himself on the main

parts of his story). ° Here we have a witness offering. :

". unlikely testimony. about the very heart of the case. What

prepared counsel: might. have done on cross. éxamination!

»

Instead, we have eight pages of aimless rehashing of ‘the E

witness’ testimony on direct examination on the. route’ taken

> (A. 61-66; . 207- 215). Not one question, not one, was

asked about the struggle and shooting. Not one question |

-* was asked on behalf of tlie defendant about the dev elopment |

of real-or apparent friendly relations. :

‘When in rebuttal on direct etnuiteition the witness was”

led to “say that there’ never were “any friendly relations

between the Holms and Mr. Stubbs (A. 104), we get a. —

féeble attempt. at impeaching that éame to nothing and —

appears faghave been: abandoned by counsel (A. 105). .The

| impression. given by. the portion ‘of the 1954 trial rev ealed

« at the 1964 trial is that of woefully unprepared defense o»

? counsel, particularly shown in the halting and ineffective —

. cross examination of Mr. Alex Holm:

.

A RAN

a. :

: x : ;

‘ — ~ A

ss . aoe RS SES > ‘

Ree ‘ . ma ‘ .¥ :

> : i;

t & ‘ : .

a : Sate ‘ 7

ee pas 7

‘Defense counsel or in 1964 were tpalpared to ~ the thing :

right. “Bee particularly the proposed questions. for a cross- . 3

ag examination Nos. 6, , & 9, 10, If}t2 (A. 73-74).:

When the \peatinniny of Mr. Holm was read: at the 1964.

“trial, the respondent Stubbs lost the opportunity. of ‘com:

. pelling® Mr. Holm to stand’ face to face with the jury in

order gthat . they might. look at him *and judge by his.

-. demeanor upon the standeand the manner, in whicli he gave,

his testimony whether hé was worthy of belief. Mattox ¥.

* United States,:156 U. 8. 237, 242. - Because of the unpre-"

a paredness ‘Of his 1954 counsel, .the respondent has effec- —

_».tively been ‘deprived of his right to eross examine Mr.

‘Holm: “It cannot seriously be doubted at this late date

that the right of cross-examination is included’ in the .

right of an accused in a criminal case to confront the wit-

nesses against him. And probably no one, certainly no

one experienced in the trial of lawsuits, would deny the eae

value of eross-examjnation i in exposing falsehood and bring-’

ing out the ‘truth in the trial. of a criminal case. : See, e.g.

. 5 Wigmore, Ev idence § 1367 (3d ed. 1940). The fact that

_this right appears in the Sixth Amendment of our Bill of |

~ ” Rights reflects the belief of the Framers -of those liberties

and safeguérds that confrontation was a fundamental right

_ essential to a fair trial in- ‘a-criminal prosecution.” - Pointer

v. Texas, 380 U. S. 400°404. At the time the Sixth’ Amend-

ment: was adopted; moreover, mere absence from a juris-

diction justified no exceptior™to the common law right of |

_ eonfrontation.'* The 1964 Tennessee~ conviction of the

rompondiont should not surviv e .

7 pans oe

ge on oe exceptions were (1) deajht of, the: witness or (2) abeonee

because of. the defendant’s ,connivance. Regina v. Scaife (1851+

17 Q. B. 238; 242, 244; 2 Den.C. C. 281, 285-286; 5 Cox C. ¢. 24a:

"245, 246; Motes~¥. United States (1900): 178 U: Sv 458, 471- 473

Wilbur v. Seldon (1826, N. Y.. Sup, Ct.)°6 Cowen. 165 + LpRéron'3 Y.

Crombie (1817) 14 Mase. 234; 935; ° |

ye ss 7 ‘st

. .

7

CONCLUSION.

‘The Tennessee prosecutorial arttiniition failed to smatke

ae any good ‘faith effort to obtain thé presence at trial of the

ee prosecution’ s indispensible witness, a citizen of the United

| States residing in Sweden. © The reading of the reco, ed

testimony of this witness deprived the respondent of

right of confrontation — The failure of the State to try <

get the witness. to come to the trial yoluntarily is not

excused by the distance to his new residence nor by the

fact: that it is in a foreign. country. A means may have

_ existed to have compelled the witness’ attendance.

. The testimony read was highly damaging to the defense.

* The introduction of it was harmful error. The testimony.

was recorded. -when the- respondent was being deprived. of _

the effective assistance @f:counsel. The State‘of New York ~

is bound by tlie Tennessee federal district court’s adjudi-

_eation of this and is estopped from contending that counsel :

had effectively cross examined the witness. Review of the

cross examination of this’ witness shows that it clearly ”

was ineffective. = ae es

The State of New York should not have pow the Tennes- »

see conviction as a predicate for increased punishment of

the respondent. ‘The jndgment of the court below, grant--

ing parene corpus relief, should be affirmed. oF

_ Respeetfully submitted,

e x

. WIMLTAM C. SGUBBS,

_ Respondent,

.

oe a . By his attorney, ee

“~' © BRUCE K. CARPENTER.

‘

©.

| Dunkirk, New York,

; | March 31, 1972.

la-~-—

_ APPENDIX A:

“ Tapuar Suuuiky OF ‘Testimony AT Siuanbaivativ’s

: . SEconp TENNESSER TRIAL

5 x a - Okley Feathers. ;

* The reapondcets ‘Tennessee cniteiied: in 1984 was de. .

_elared null and void in Federal habeas corpus proceedings

- by an order of Hon. William E. Miller, J udge of the United

_ States District Court for the Middle District of Tennessee,

entered on J anuary 6, 1964 (this decision is reproduced ’

as Appendix B, below). The respondent’s second Ten- — .

nessee trial began on July 20, 1964. A certified copy of the

‘ transcript of the 1964 trial has been filed with this Court. ~

Since the testimony of only two of: the witnesses at the

1964 trial is reproduced in the joint appen (pp.. A.36-

195), a brief summary of the other witn testimony

follows : i

OKLEY “Fentress (T. “2.90; 153. 158)* + Aes the deputy

_ Court Clerk who had custody of the recofds relating to the

prosecution of William Charles Stubbs (T. 2). It was

proved by the minutes of the July term, 1954, that the jury’

- had found the defendant William C. Stubbs guilty of mur-

der in the first degree, felonious’ assault with intent to.

‘commit murder in, the first degree- (for which he was sen-

tepced to concurrent ternis of imprisonment of ninety-nine .

years and ‘three to twenty-ene years) and guilty of kid: -

} napping in two cases (for which “he had been given con-

current sentences of two to ten years), but the es id .

_ * The numbers in Tees preceded: by: “T.” refer to the pages

_ of the 1964 trial of the respondént in the Criminal Court, Blountville,

Sullivan County, Tennessee. ‘This. transcript as prepared for the

Tennessee Supreme Court, was denominated “bill of exceptions”, and -

* was filed: with the Tennessee Supreme Court on March 23. 1965. Refer-

brag to pages of the ec ee in this. Court will be =

y “A.” 7"

s

Tabular Summary 0 ' Testimony at Respondents :

Second ennessee Trial.’ :

Otley F Feathers; Frank Williinson. : “

‘sentences were to run + cca with the sided and

assault sentences (T. 6). ‘ The prosecution introducéd a.

copy of the order from the, United States District Court _

of the Middle District of Tennessee, civil. actioa-No. 3585

_ before Hon. William KE. Miller (tT. 19; 153-158 ; see Ap-

- “pendix B, below)... Joe

Fraxk Wituiamson (T. 91-38) was a captain with the.”

highway patrol and was commanding officer of the division

, including «Sulliv an County, Tennessee, on July 11, 1954

_ AT. 21). ° The. highway patrol investigated a wreck near

Blountville and then began to look for an individual on foot.

| €T. 22-23). At dusk a roadblock was set up (T. 23). It

- .. was at the hospital that the witness first saw the defendant —

Stubbs, who had 2 shot wound in his head and a powder

burn on his left hand (T. 23-24). Mr. Stubbgwas observed

tobe left-handed (¥. 24). -The defendant was-questioned

at the police station in Bristol, ‘Tennessee: “T asked him

about the gun and he said, I have no gun. I asked him *

‘where, he had been and he stated that he liad been in and |

around Cherokee Lake. He had been fishing. I asked him

where he got that head wound and he said that he fell on, °

. some rocks while fishing. I asked him about his hand, and

as I remember, he didn’t make any . statemient about his |

. hand” (T. 26). The defendant denied ‘having a gan at the © _

time (T. 28). oi

The -defendant Stubbs 1 was taken in a patrol ear. to “ .

o hospital, handcuffed to one of the officers (T. 28-29). »

- was taken to the room of a Mr. Holm ( T; 29): “a “Well, .

* The spelling given for «Folm” its the transeript was at times.

™ “Holmes”. .

Ja. ae ped,

LS. 4 Fes Smnenig of Testimony at Respondent's

ms Second Tennessee Trial.. |

Frank Williamson; Jim Pendergrass...

ante Holm] me babies ehot ‘i the tool = we ‘iia ails J 2

question of Mr. Stubbs who. was there, who shot him and

he said, that ‘boy. there... Reg ap He said, tha?

is the man that shot me and killed my wife” ('T. 29, 30).

' The witness had ineasured the distance traveled by Mr..°..

‘Stubbs’ in the company of Mr. and. Mrs. Holm; it was

_ approximately 52 to 55 miles (T. 31). Oneross examination =

- Captain Williamson testified that during the conversations’ —

)__ by the police with the defendant there was always a num-

ber ‘of. uniformed and armed, police officers present (T:

| 32-33): The rotite taken by Mr. Stubbs and the Holms led —

through Rogersville, .a’ sizeable town, through Churchill,

through the ‘center of Kingsport, ‘through Center Street,

Blountville, to'a place a couple of miles east of Blountville

(T. 34.35). Mr. Stubbs had wounds-on-the top of his

head, which were called to the attention of the police officers

by a doctor at the hospital (¥. 36). eg?! ie Se

Jim Pexvercrass (T. 39-57) was an officer with’ ‘the high--

way patrol .(T.39).. He received a radio eall and went to |

‘ a place on the highway a mile’ or a mile and a half east of

Blountville, (T. 40). - He found a black. 1951 Ford with: - -

‘Texas license plates (T. 40). He found in he car an old: |

model. .32 Smith and Wesson pistol: on the back floorboard

of thé car behind the front seat (T. 41). The gun had

_ six empty shells in it and had blood on it (T. 41). There ©

was blood all gver the interior of the ear (T..42). When

_Mr. Pendergrass arrived Mr. Holm. was there injured, but.

“Mrs. Holm, the deceased, was not there (T. 43). A search,

. which was to last approximately six hours, began (T. 43).

a ° ° ec

4a

ae Tabular failing of cine at Respondent's

aos Second Tennessee Trial. << ae:

Jum Pendergrass; Burl Q. vaiencone

It was aise tsmalilliy 2:00. o'elock i in.the afternoon ‘tei

. the:witness arrived at the scene (T. 44).. The witness first

saw the defendant Stubbs at fhe police station. in Bristél:

that night (T. 44). The defendant was about five and one-

half feg¢ tall and weighed about one hundred forty orone

"hundred. fifty . pounds (T. 44). Mr. Pendergrass did not.

‘hear the defendant Stubbs. make’ any . statements © that

"night (T. 44). The defendant‘had én a brown shirt which |

was bloody all over .(T. 44): The defendant had about a~

two or three days’ growth of beard (T: 44, 45). The next |

day the witness had a conversation - with the defendant |

; Stubbs. Cz. 45). The defendant said he had been hitcli-hik-

ing from Texas up throagh : North Carolina to, Bristol -

(T. sid id

On Cross examination ~ Bir: Petes testified that

when he got to the 1951 Ford with the Texas license nobody -

was in it (T. 50). The car was a two-door model (T. 51). _ |

The. gun was lying: in open view on the floor of the rear. __

" seat, directly behind thé driver’s seat (T. 51). Blood was _

* found on both je floor and the back seat (T. 52). The wit- -

_ ness did not hear any of the police officers ever advise Mr.

_ Stubbs of his right against self-incriniination (T. 53). .The

witness recalled that. there were blood spots on the front |

of Mr. Stubbs’ shirt, but could not recall any blood on the ~

-back (T. 64). The witness remembered that: there was at

_ least one coer gash on the defendant Stubbs’ head (T. 56).

- ‘Burr Q. Hot.mes (Hoi) (T. 58-63) was the son of the

déeeased Mrs. Ruby Holm and of Mr. Alex Hulm (T. 58). —

Burl Q. Holmes lived in George West," Texas, about 80° |

'. miles southwest of San Antonio. (T.. 58). The witness’ .

father, Mr. Alex: Holin, was living at the time of the 1964 -

a

ae =

; ss i a : 4 ae

Tabular Summary of Testimony at Respondent's 3

_ Sécond Tennessee Trial. © ee

par’. Holmes; Berme Webb. Me aes De 7 eee

Sutienish ‘trial in Ekekogen, Sioa (T. 59). "His maciheee

', and father were going: to Providence, Rhode Island. and .

_ from there they were going to fly to Sweden (T. 59). They ’

had left Texas four days before ‘Mrs. Holm di¢d (T. 60}.—

The witness’ father, Mr. Holm, was about five feet ten ind :

. one-half inches tall and’ ‘weighed about th two hundred thirty-. .

- + five pounds; physically, | he was strong; he wore gold rim- ~ :

, -méd' bifocals (T. 60,61). Mr. Holm was born on December ~ — ~

94, 1892, and came to America in 1908 (T. 62). The wit- |

ness’ méther and father had lived on a farm they or |

"at Karnes City, Texas, about 60 miles southeast. of ‘San .

a tonio (T. 62)... : :

Bernie Wess (T. 63: 73) was ‘the athletic. direetor at

3 * Blountville Tennessee, High School (T. 63). Early on the

evening of June 11, 1954, he was driving toward the high-

way between Bristol and Blountville (T. 65). Later he

-. left this highway and went on to a side road, where he

_. Saw the .defendant Stubbs .coming toward the highway

(Tr. 65-66). The witness turned around, came back, and —

asked the defendant: he wanted a ride (T. 66). The

“defendant said hie had come from Texas arid was headed

- toward New York hitch-hiking (T. 66): “: . . he said that

he had injured> his head.: There was some blood on -his

head and ‘he said that he had injured his head that he had .

fell on some rocks . . . I mean that he fell and hit his head

against a rock” (T. 66). The witness and the defendant

_ went on the highway toward Bristol (T. 67). In. ‘about four

miles they approached, the roadblock (T. 67). There were

several people. at the roadblock, including a. aR

Seahorn (T. 68): “I said, I believe that this is your man.

_ And that i is all that I said” piu: bite |

Sas

| .

ee ae rae Sumaiary of Testimony at Respondent's

cet bs \ Second Tennessee Trial. -

Bernie Webb ; John O. arog; J. L _Seahorn.

ula One cross éxamination. Mr. Webb testified that at 1 no os

dja the defendant. give him any trouble or ‘try to get out of

-, the automobile (T. 71). eS were

| Joxn O. ‘Maney ye 73. TT) - was a niidiead doctor peek

_ tiecmg in Bri ristol, Tennessee, Virginia (T. 73). He examined - ;

the defen at William’ Stubbs at Bristol. Memorial

‘Hospital on the evening of June 1, 1954 (?. 74):

. (£Q. Would you describe his condition? A. :He was

on the,. . . he was brought into the emergency room |

by the highway patrol and he was placed on the table, .

- the enamine table. He had several lacerations on the

« . Yight side of his head...

Q.- Would you describe those isberations; ‘clean’

| As best you recall. A. There were three small’ euts.

_. above.and behind his right ear. ~ oe

Me Foye Q. Could you tell what had made those cuts, what +

roe had sicaeel them? ‘Could you tell from your exami- ° °

‘nation what had:produced them? A. It could have, .

-been.a blow on ig head, I would say?

. Were they smooth cuts or were “they ragged! ?.

[*75] Q. Do you recall the size of them? . “x. They

‘ would vary from one, to two, to three inches in length.

_“Q.- Were they deep cuts or shallow cuts? A. They

were: ‘ather deep. They went. Shrones ¢ the ae aes

®) oe A .

fe \

The cuts on the defendant's head were f resh, ‘having

- been inflicted two to six x hours before the examination (7.

(7). ‘wre Fe ae

es a aie Cr, 77-84) was an officer with the ekwa

atrol/ on June’ 1 , 1954 (T. 77). . He and trooper Mont- '

, ‘gomery Were man ing a roadblock at an intersection on the

‘highway leading from Blountville to Bristol -(T.. 771). Mr.

‘Stubbs was artested and taken out of Mr.. Webb’s car as

, Tabular Suilteniy of Testimony at | Respondent Ss

, Second Tennessee. Trial. *:

e ie # Seahorn.. : é

- soon as’it had driven up to the. roadblock (T. 78). The

defendant was wearing blue trousers and a khaki shirt;

his trousers. were torn in the left leg; he had a pretty long exe

heavy beard and “was pretty. rough looking” (T. 78). The —

witness observed that the defendant had blood oii the front

of his shirt. (T. 78). After the defendant had been ar-

rested .and. the .officers_started to Bristol with him, the

" defendant made a statement that he had been fishing down.

on Cherokee Lake, had fallen off a rock cliff, and had cut

his head, which was where the blood had come from (T. 79).

~ The defendant said that - ‘he was going to New York and

had hitched a ride up (T. 79). ‘The defendant was searched

(T. 79). A pocket knife, one empty bullet shell and a

billfold were found (T. 80). -Mr. Seahorn later was among

Se officers who took the defendant to the hospatal (T. 80) :

-. and one of the men asked Mr. ‘Holmes [sic] if he could

‘hesuniies anybody in that crowd, could recognize this man

and Mr. Holmés pointed at him. and said that is the man —

‘that killed my w ife and shot me” ‘gi 80).

On ‘cross examination Mr. Seahorn testified that ik: 3

the ‘Webb automobile: ‘reached the roadblock the. defendant,

who did not have. any chance to: get . away, did not try to

get away, (T. 81-82). The defendant’ was immédiately told

he was under arrest for investigation of: murder (T. 82): ;

. After the defendant Stubbs had reached the police depart- . -

ment, he was: accompanied by about five armed officers :

most of the time (T.. 82-83). The defendant had ‘cuts on

: his head’ which required treatment by a caigegi (T. 83).

\When the defendant was taken up to Mr. | ’s room at.”

"the hospital, no individuals were up there with the defend-.° -

ant. similar fo him in size and os elds 83).

a.m

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Ta Sriemary of Testimony at Respondent's

oO Second Tennessee Trial. Ae er oa

Pie. Montgomery: os :

‘iL. P. ‘ssiiiuitts LT. 84-98) was a ‘corporal i in the high- ;

- way patrol on June 11, (1954: (T. 85). He had joined the.

oe original search (T. 86). “After some two hours he went ®...°

+ the city limits of Bristol on_the highway ‘and set up a

roadblock (T.'86)* The defendant, when he got out of the

Webb automobile, had a two or three days’ growth of |

“beard; his clothes were dirty and had blood on them (T..-

87). A search. of the defendant Stubbs produced a pillfold,

a pocket knife, and one pistol shell (T. 87). The defendant

said that he got the blood that- was on him-from a fall |

while fishing at Cherokee Lake (T- 88)... Mr. Montgomery ©

was one of the officers who took the defendant. to the .

‘ - hospita) (T. 88). . The witness recalled that one of the

senior officers asked Mr. Holm “if he had seen this fellow

before”, and Mr. Holm.“ . . pointed his finger at him and .

said, yes, sir, he said that i is the man that killed my wife

and shot me” (T. 88:89).

? . “At least five uniformed offitere: aesomapanied the defend: ee

ant to the hospital (T. 93-94). There was. plenty’ of light a

in the hospital room. (T. 95). ‘The. witness did not .think ~

_ that: Mr: Holm had his glasses on:(T. 95): The question _

» . asked Mr. Holm was “if he had seen this fellow before” -

(T: 95). “At the‘time of this identification Mr. Stubbs va !

hand-enffed and standing among the officers (T. 95). . Has.

defendant asked. why he was being arrested; the’ (hie se

responded that he did ‘not know why (T. 96). At the

identification procedure i in the hospital, ‘Mr. Holm was not.

shown anyone ‘elge’ similar in appearance to Mr. Stubbs;

Mr. Holm was only asked if he had seen | Mr. ‘Stubbs

a - key : Bae Oe :

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‘Tebuler Summary of Testimony at Respondent's

Pears "Second Tennessee Trad. . *

sie Edwards.

lier Eowanns (T. 98-109) was Lisdloyeh-o on stoi 11, 1954, :

by the. Bristol, ‘Tennessee Police Department as an inves-.

‘tigatot (T. 98). At about -2 30 in the afternoon a call was |

received ‘at: police headquarters that a woman @d been

shot on the Old Blountville Highway, (T. 99), The shooting

took place approximately four and one-half miles west of.

‘Bristol (T. 99); A 1951 Ford-with Texas license plates

. twenty-four years. old, me: in build, approximately five

_ was in a ditch (T: 100). A search commenced ;. the police

were looking -for an individual. about twenty-three to

>

feet six or seven: inches in eight, “dressed i in khaki clothes :

o (T. 101). Mr. Edwards first saw the defendant at police. ne

- headquarters at about 8:00 P. M. ‘(T~101): “He. had a

: heavy ‘growth of heard on him, and° blood on his shivt and ,

- small wounds on his ‘head.- Lacerations over his right ear -

rather, and one on his forhead [sic]:. There was a wound

* on his hand, his left hand between his hand and his left _,

“finger” (T. 102).. ‘The witness asked the defendant whére’ «> -

” he got the wounds, “and he said that: che fell on Cherokee’

_- Lake fishing” (T. 102). When the deferidant. signed a

fingerprint card, he used-his left hand (T: 102). “When he-

~ was taken'to.the hospital room of Mr. Holms, the defendant’ |

2 Stubbs was handeuffed to Mr. Edwards (T.., 103):

‘0 5

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Fy, ¥ von — nywieme + ger RNC GigR RET CD — Sept, ; rt ined n we ORGS ag he F

“As you: go into the room, Mr: Holmes {sic] bed i is on

a right. Doctor Harkrader went in and explained to.

thot of the our mission there and,we walked in to the’

f the bed and Doctor: Harkvildor turned the ceil-

tee ht:on. There was.a small tight on over the bed

‘ and Mr. Holmes raised up on his right elbow and looked

ot him and said that is the man thas shot 1 my wife and

’. shot me. ; ;

‘Tabular Summary of Tcetimous at Respondent's:

. i . ‘Second Tennessee Trial.

Roy Edwards;. A. H. ; Hurd.

“Q. And ahs was he referring to? A. Mr. Pe

the defendant” (T. 203).

_: Leaving the hospital room of Mr. Holm, the witness tes-

: . tified that the defendant Stubbs said that he had never-laid

eyes on the man (T. 104). . Following this identification .

: procedure j in the room of Mr. Holm, the defendant. Stubbs —

‘ was taken to the emergency room where he ‘was treated for:

his lacerations (T. 104). The witness received some items »

physical evidence, which were forwarded to the aes lab-

’ oratory in Washington (T. 105).

On cross examination Mr. Edwards testified that the 32°

ealiber Smith and Wesson gun, which the witness received

from Captain Williamson, was loaded with empty shells _

(T. 106). .No.paraffin test was performed on Mr. -Stubbs. © |

(T. 107).- The witness, the two doctors, a constable and

Chief Rogers were dressed in civilian clothing when. the.

_ identification procedure was conducted at the hospital; the .

doctors had on suits, the constable was about fifty years old

(T. 107-108). The witness did ‘not recall whether Mr. Holm _

| was wearing his glasses (T.108). | :

-A. H. Hurp (T. 109- 113) was the Sheriff of Sullivan

County, Tennessee on June 11, 1954. The entire force was

out hunting for the suspect (T. 110). The witness saw the —

defendant first after he had béen taken into custody: (T.

110). The defendant Stubbs was asked by Sheriff Hurd

about the injuries to his face and head, “. .°. and as I:

4remember he told’me that he was fishing down on Cherokee

Lake and fell and hurt himself” (T. 111).

lla |

Tabular Summar. y of Testimony at Respondent’s

a Second Tennessee Triad.

| C. CU. Wag agner; Holm eeROeNe; H. C. Smith.

' CHarues’C, Wacyer (T: 113-118) was a minnbet of the.

. Sullivan County. Sheriff’s Department at the time of the

1964 trial and had the job: of handling subpoenas (T. 113-.-

114). In the absence of the jury, Mr. Wagner testified as

to whether certain people were served with subpoenas on

behalf of the prosecution (T. 116). ;

SuBpoena For Mr. Atex Hou. At this point in the trial

(T. 118) the prosecuting attorney introduced into evidence _

a subpoena, “for Mr. Alex Holmes [sic] that. was sent to.

the Sheriff of Karnes County, Texas in Karnes: City: The |

return being made on this as Alex Holmes, on the 17th day

of July, 1964 as being in Sweden” (T..118-119)..

, HERMAN Coxwa SmitH (T. 120-132) was at the time of |

the 1954 trial the Tennessee District Attorney General by i

120-121), Apparently in the absence of the jury (T. 171,

lines 8-11), the witness gave recolleetions of his concerning

Mr. Stubbs’ testimony at the 1954 trial. The witness’s rec- .

_ ollection, as revealed on direct examinafaon, was that Mr.

Stubbs :

“| . stated that he first saw Mr. and Mrs. Holmes at

a road side table in Hawkins County, Tennessee near

Cherokee Lake. It seems that to the best of my rec :

- jeetion, Mr. and Mrs. Holmes were having lunch at

road side table only the two being present and that

there was an automobile bearing a Texas license plate,

on it at the’road side park. That he came up from-the

bank side which is nearer to the road side. table about

the time they were finjshing their lunch and weré fixing

. to get back in the ear. He engaged with them in con-

versation, that he asked them where they were going

aand they told him and he wen around the antomobile

‘into Sullivan County (T. 129): /

Ped

i Ce a

s ‘ ‘ .

| Tabular Suadnace of. ee at Respondent's

_ Second Tennessee Trial. ‘

Herman C omway 8 mith.

ee as hee came back to where they sat at the yoad side

table- putting things in the car. He had a 32 pistol”

with him. at that time. That he told Mr. and Mrs.

Holmes to get into the back seat of the car and that ~

he would drive. And that for some distance’ driving

toward Kingsport from or on 11- W, I believe was the ,

highway and he held the pistol in ‘his left hand and .

he.steered the automobile with his right. They came’

through Kingsport. They proceeded through Blount.

ville: “A-short distance from Blountville, some distance

West of Bristol, that some statement was made by,

them in the car and that the pacnine took place...”

(T. 123-124).

On cross examination the witness testified that’ he re-

called ‘Mr. Stubbs testifying that he had approached the

Holms car because, he wanted a ride (T. 125). The witness

thought that Mr. Stubbs. had testified in 1954 that when he.

came into Tennessee he did not have any money (T. 126);

that Mr. Stubbs had traveled many a and had been

walking-a considerable period of time uve 127); that he ©

had discussed: transportation with the Holms (T. 1

' The witness Smith was asked by defense counsel at the

1964 trial about whether he could recall. Mr. Stubbs having

testified in 1954 about beginning to. talk with Mr. and Mrs.

‘Holm, who were in the. back ‘seat of their automobile as

they were driving toward Bristol (T.. 128); abput Mr.

Stubbs just wanting a ride: because he was hungry and °

about him not intending to hurt the Holms (T. 129) ; about

_ Mr. Holms asking Mr. Stubbs: to put the gun down, about

Mr. Stubbs starting to put it in his belt and about Mr. Holm

saying “why don’t you put it down here on the front seat,”

about Mr. Stubbs doing this before the automobile ever ot ~

°

13a

Tabular Swmmary of Testimony at Respondent's

Second Tennessee Trial. , |

i: C8 Smith; ¢. Harkrader, J. G. M. Blessing.

* «<Q. daa you vemeinher, don’t you thad Mr.. Stubbs

- testified that after he was asked to put the gun down,

| -and they became on friendly terms and friendly

ips before: they ever eamé into trouble?

‘Stubbs, testified, concerning a trip here, as

to present guage used, as to terms of friendly, °

there were objections and it was sustained by the court’

« -calling for a conclusion as to whether. they ‘were on

friendly terms” — that was a question for. the |

jury...

“Q.. No ow, I am not asking you if it is a question for

the jury: Now, you remember him testifying .

A. Yes, sir, I remember him testifying” (T. 131).

pete. Pa eaved Bucuanan {T. 133-138) was a phy-

clan practicing in Bristol, Tennessee, Virgi (T. 133).

He had treated Mr. Holm on June 11, 1954, ate*thereafter

for gunshot wounds of his face (T. 133). Mr. Holm had

|v two wounds, one just below the left eye and another just

lateral to that over his teeth (J. 133). One bullet had-.

ended up in his neck and the other had ended up in his

nasal passage (T. 133). One of the bullets. had’ struck

the bottom edge of one of the lenses in Mr.. Holm’s eye

glasses (T. 134). The’ doctor was present at the time Mr.

_ . Holm identified Mr. Stubbs as his assatlant (Ty 135).

Cuartes Harkraber, J R. (7. 138-141) was.a doctor prac-

ticing in Bristol, Tennessee (T. 138). He had attended. -

Mr, Holm who was’ suffering. from two bullet -wounds in |

dus face which had been inflicted at rather short range

(T. 134).. The two bullets were removed, one from thes

nasal pharnyx and the other from the neck (T. 139).

Gorvon M. BLESSING (T. 141-152), out of? the presence’

' of the jury, testified that as a ee Sheriff of Sullivan *

; . aaa * o . . .

ODA SoA YR RRM IAG ROPES RR PR I rR ERE LS POTS TRUE IN a eR

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= 14a

6 .

r Tabular Summary of Testimony at Respondent's

oy + aa Second Tennessee Trial.

:. . Gordon M. Blessing; Counsels? Objections.

County, Tennessee, he had served. subpoenas upon some

of the witnesses, but had been unable to locate seven named

witnesses and’ had returned thaf three individuals sought

‘as witnesses by the-prosecution were deceased. (T. 143).

| Derense CounsELs’ OssECTIONS | To ReEapInG Testimony

Frou Former Trac. ‘When the. prosecution first an-

nounced its intention to read to the jury the testimony |

from the first trial, the defendant objected. A colloquy

and ruling ensued (T. 159-164). This portion of the tran-

- seript of the 1964 trial, which was omitted from the joint

appendix, is reproduced - below in its entirety :

— ‘[*159] -“Mr. Wooten [ Assistant Attorne —

_ prosecuting]: If Your Honor please, the State pur-.

- ports to offern into the record, the testimony of the |

deceased witnesses and witnesses that we have not

been able to obtain sérvice on from the original trial. .

_ We have present the Court Reporter who transcribed |

the. original reeord and she is. here to read the testi-

mony into this’record: ;

The Court: Now, General, I think hat you |

better say which witnesses‘are going’to be read.

* think that you have two of them that you have admit- .

_ ted that. they have admitted were dead. Which done

are you going to read first, General? e

. _ Mr. Wooten: I would like to read Mr. Axel] Holmes

[ Alex Holm], if Your Honor please.

~ . Mr. Haynes [Defense Counsel]: . Your Honor, it is

_. our position ‘that the law in this state, prohibits the

-,. reading of prior testimony of another witness who is

still alive.

' ‘The Court: Have you any authorities on this ués-

_ tion of when a person is 3 out of the jurisdiction of the

United States? — 7

. Mr. Haynes: The cases that we have Your Honor,

hold that when a person is out of the jurisdiction of |

15a

Tabular Summary of Testimony at Respondent’ s

: Second Tennessee Trial. re

~ Counsels’ Objections to Beading ‘Former Testimony. \

r

+ the United [*160] I mean the State and still alive,

that person’s testimony cannot be admissable [sic]. —

The Court: Now, does that say State. or United:

States? = = 7 ee |

Mr. Haynes: It says state, but that would still be ~~ F

out of the jurisdiction of-this Court. But it would be

, the same, we contend, whether they be out or whether

~ they be in a foreign country or a foreign state.. Hall

vs. State in 65 Tennessee Reports 522 and it has.not .

_ been overruled or modified to the extent, it held that .

a person’s testimony could not be read as long as that

witness was still alive and frankly, this case would.

modify an earlier case that held that a witnessés. tes-

. timony couldn’t even be read and him dead. This is

_ Hall vs. State. It held that as along as a witness

was still alive that it could not be read and we con-.

tend that it be true whether they be in another state

or country. It wouldn’t make very much difference. —

In this case, it has not been shown that there has

been any effort-to have Mr. Holmes to come here by

~ anybody. There has been.an offer on their part to

have us take the deposition so that we could be af:

forded _the_right to cross examinatiow. There is no

effort apparently [stc], on or about the 13th of July,

they got a subpoena issued and sent. down to Texas

- and,that subpoena was directed to the sheriff of Sulli-

van County who had no legal force down’ there in

_ Texas at all. And an unsigned return was [*161]

~ made on that subpoena and sent back. We rely strong-

_ly-on Hall against the State. It has not been changed, »

nor has it been modified. — ;

The Court: - I. don’t think that there is anything

anything in the code, about it gentlemen, if I.remem-

ber correctly. Or I don’t. ever remember ever seeing’

oa asaya (2) Sane se

_ Mr. Haynes : It is a real old case, if Your Honor

please. . I. have Sheapardized [sic] this case and it

has not-been overruled: or modified.: mo

“The Court: Well, go ahead. I will hear you and

then I want to hear the State. 2 te

—_——

~ Mr. ‘Haynes: ‘There js one sao aes seen atin tae

ease that Your Honorfshould consider ‘and that is, ,

_ whatever: prior testimsny that. they may offer, the

only ‘cross examination that .we have here, would be .

the cross examination that was made ten years ago-

by attorneys.that had only a few days to prepare

the defense ... . or one day to prepare their defense.

‘And the Federal Court has already held in the order:

that Yeur Honor has seen and they said that the law-

yers didn’t have sufficient time to prepare, their de-

fense and surely, they didn’t have time. to prepare

an adequate cross examination. Now, ‘certainly we"

can’t cross examine them. We ‘can’t cross examine a

transcript. That is the one thing that they sent this .

ease back to improve. Now, that states our [*162].—

The Court: Alright, Mr. Attorney General, ‘what do’

you have to say? ..

Mr. Wooten: Your Honor, the Hall vs. State is in —

1872 is modified by implication by Section 40-2429 of

the ‘Tennessee Code which. provides for uniform at-

tendance of the witnesses. . At the top of ‘the page in

Hall vs. State was yielding . . was yielded by this -

statute which now provides the attendance of: witnesses

anyplace in the jurisdiction or in the District of Co-

lumbia. Under this authority, we have no way to

compel the attendance of Mr. Holmes. He is beyond

. the issuing of the judicial processes, not only -in the .

State of Tennessee, but in the United States of Amer-

ica. And for all legal purposes, he is dead. Or at

, least, he he is dead as far’ as the State of Tennessee

is concerned. Qur position is, that his testimony would

be admissable {sic]. Our further contention is that

his testimony would be essential to the prosecution

of this cage. Now, we have the Court Reporter here

-_ that’ took the testimony and it is available to us only

in that ner. We do not think that Hall vs. State .

is authority‘at this time. .

Mr. -Mitchell [Defense Counsel]: Your ‘Honor

; please, T think. it is the law and it is the law until the

”

17a.

‘Tabular Summary of Testimony at Respondent's

— Second Tennessee Trial. :

> .

Counsels’ Objections to Reading Former Testimony,

napa peal therwine: Now, as your Honor recails,

Mr. Wooten stated that he would have Mr. Holmes

present .. [*163} -—

The Court: Well, we. will not argue that point. I.

want to hear the law, gentlemen. That is what I

‘want. I want to know the law. :

--Mr. Mitchell: Now, I do want to insist upon this, a

_if Your Honor. please could have taken this man’s

deposition if they wanted to. Now, this man is on |

trial for his life. - I: think that they ought to show that .

they. made a reasonable: attempt to have him sum-

monends. And I was reading from the newspaper

which is not admissable [sic], but one of the reporters —

asked Mr. Holmes if . |

The Court: Well, let’s don’t get into .the newspa-

per. i<*°

‘Mr. Mitchell: Well, one of .

The Court: I have heard too. “ninchaalee ady

. Mr. Mitchell: I understand, but Mr. Holmes testi-

fied about where his father was, yet he was quoted as ©

’ saying that his father didi’t even know that. it was

being tried, And if that. be the case, then I think the

State h&s fallen down on their duty.

- The Court: Gentlemen, I think this, I believe that ~

where there is a process whereby they can get wit-

nesses in the’ United States and there is not a process

whereby we can bring those witnesses Kack from a

* foeign country, I. think that it does make a differ-

ence. And I feel like the evidence of the sons of the

prosecutor . ... he swore’ that he was in Sweden and T

am going to ov verrule this and I am going to [*164]

let it in. Let the.jury come back. Do you want to

take that up about the qualifications of the witness

and let them hear that.

Mr. Wooten: I believe that it would be competent

. Your Honor.

The Court: Yeah, let the jury come back” (T. 159- |

164).

‘Tabular Summary of Testimony at Respondent's

+ Second Tennessee Trial. :

Elena B. Harris; Williams Charles Stubbs.

Exvena B. Harris (T. 164-233). (‘P. 283-287) was the

court reporter who had attended the 1954 trial of William

__C. Stubbs (T. 165). She had rétained her shorthand notes

a of the former trial (T. 166) and had prepared a transcript

\°. ‘of it (T. 167). Again, counsel for the defendant objected -

‘to the reading of the Aestimony from the earlier trial:

“And we further object on the grounds that this is

hearsay. There has been no showing on, no showing .

of any. effort on the. part of the State to get this wit-

“ness here and said defendant will. be deprived of the

right of cross examination as provided in the Con-

stitution and will be deprive@®f due process” (T. 173)...

| The objection was overruled, the transcript was admitted

‘into evidence’ as. an exhibit (T. 174). The remainder of —

‘Mrs. Harris’ testimony: consists in the reading of Mr.:

Holm’s testimony from the 1954 trial with interjections

made by’ the trial judge and counsel at the 1964 trial.

This testimony .is reproduced in the joint appendix (A:

36-74; 103-105), is discussed in the argument, and.thus, need

not be summarized here. ~ . |

Wuu1m CHARLES: Srupss (T. 237-283) the defendant,

testified on his own behalf. Since his testimony is fully

reproduced in the joint appendix (A. 75-102) it, also, need

‘not be summarized here. ee oe iti ae

Donatp Srusss (T. 281-283), the defendant’s:brother, was -

called as a witness for the defense, but testified to nothing

material, © Te RS es

m ”

19a. ' -

es .

- ° 4

os Tabular Sunimary of Testimony at Respondents — ei

- ie aes Second Tennessee Trial. ort

Charge sf Trial u Judge. e

| CHARGE ‘OF THE Traut Fo UDGE. “The ‘astrentins to the Sia

jury: by the trial judge at the 1964 trial contain the follow: :

‘ing provisions relating to the defense offered : .

“The theory of the defendant in ‘this. case is ‘that he ,.

did not shoot and kill Mrs. Ruth Holm as charged:

in the indictment; gat when he cameto the roadside

table where the deceased and her husband, Alex Holm,

were eating, he was Steppe hungry and broke and.

wanted a ride to Bristol with fa in. their car; that

when. they refused, he k his pistol in his. hand and

_made them get. into the That he did not intende to

rob ‘or shoot them and intended to get out at Bristol .

and let them go on with their car and other property. |

That when they went through Rogersville, at the re-

quest of Mrs. Holm, he laid the pistol down in “the

‘front seat.. That when he got to the scene of the

shooting, he looked at some people standing on the side

of the road and thereupon pone struck him on

the head and he threw wy his hand and heard a loud -

report; that thereafter, he was dazed, but

to fall out of the car; that he did not shoot the pistol:

'.” at either of them. and knows nothing about who shot

Mrs. Holm, ~but that he ran away. because he knew

that Mr. Holm had the pistol and would shoot him;

If you believe the theory of the defendant; or have 4

reasonable douht of his guilt, you should ——

him” (T. ia

Pee

“APPENDIX B,

: -.° , ORDER

— v. Bomar, reproduced in: thia ae is the —

_’ order of the United States District Court for the Middle

— District of.Tennessee,/ which: declared null and void the |

1954 conviction of

° 9 introduced at the 1

Tennessee aria le alae

IN THE '

Mappix: DistkIcT OF TaN EASE,

|

Nasavine Division

- Fort TH

‘gf aoe — C. STUBBS,

eehiseens a SO. Petitioner,

eS gee : Vek 7 ve : :

Ge ang LYNN BOMAR, Warden, Tennessee State

ie. AM 3 ‘ Penitentiary, PLS am

5 eg Me Sees Respondent.

Si Civil Action 3585.

ORDER oes

‘rads icuioloag ae ihe ace a nace ae

6 of December, 1963, before the Honorable William E. Miller;

Judge, United States District Court, upon the petition for

writ of habeas corpus filed by petitioner, William C. Stubbs,

illiam C.. Stubbs. This order was

ad

a

answer thereto filed on ‘behalf of renee, Lynn Bomar; |

: eas ie Order, Stubbs v. Bomar.

*

Warden, Tennessee State Picitidlii the ction being’

present in Court and répresented by counsel, and after a

full and complete hearing of the matter, including the testi-

- mony. of the petitioner and upon. consideration of-the entire -

record, the Court. is of the opinion that the petition for .

» writ of ‘habeas: corpus filed in this cause should be granted.

It appears .from the record that petitioner Stubbs was —

f arrested i in Sullivan County, Tennessee,-on the 11th day of .

June, 1954, for the crimes of mtrder in the first degree,

_ assault with intent to commit murder, and kidnapping (two

cases), the alleged offenses, having ‘devearred | on axe same

date in Sullivan Cour y> Tennessee, gh Due

: The evidence and the record: further eRe that the

-spetitioner was indicted in the Crimizial Court of Sullivan

County for the above. enumerated offenses on the 8th day : si

- of July, 1954, and on the next day, to wit, the 9th day of

July, 1954, the petitioner Was arraigned before the Trial

- Judge and at which time three members of, the Sullivan’

County Bar were appointed to represent petitioner Stubbs. '

The evidence and the record before ' the Court shows

that petitioner’s ¢ase was set, for trial on the 19th day .

of J uly, 1954, at which time Court-appointed counsel repre-

senting the petitioner filed a motion for a continuance on |

‘the ground that the Court-appointed counseb had. not had

‘sufficient time ‘to prepare a defense on behalf of petitioner, a

-and the Court-appointed: counsel also filed a motion for

a change of venue. Both motions were overruled by the

~ Trial Judge, and the scmsaayed was ia to trial on the 12th

“day. of July, 1954. | te MN is

‘ f ‘

-\, .

_ &

22a

Order, Stubbs v. Bomar.

The evidence and the record’ before the Court shows that

the State. of Tennessee was seeking the death penalty

against the petitioner, and the petitioner being an indigent

‘erson,the Trial Court appointed a Court reporter, as :

_authorized under the: provisions of Section 40-2011 Ten-

~~ < nessee Code Annotated. However, the evidence and the

"record. further shows that the Trial proceedings were never

- ” transcribed’ or reduced to writing: by the Court reporter. e

. There is likewise some evidence before the Court that the

aN petitioner requested his Court-appointed counsel: to. appeal

| \_ his convictions, and his Court-appointed counsel. failed to

Nor refused to’ appeal said _convittions on account of the

petitioner | ing an indigent. person.

The Court is of the opinion that the evidence and the .

; record “Mow that the Constitutional rights of petitioner

Stubbs wera,violated at the. time of his trial in the Criminal

Court of Sulli yan County in that his Court- appointed

courisel did not Haye adequate and. sufficient time within

which to prepare théeSnecessary defense prior to going to

¢ . trial, and as a result thé-petitioner was denied effective

_ representation by counsel... — Court is.of the further

* opinidn that the petitioner’s Conbtitu

- _ “violated when the petitioner was denied th

ae said convictions, and judgments appealed to the Supreme

. Court of Tennessee on account of - —— — an

indigent person, ,

at * therefore ordered, adjudged wn decreed by the

peti that the convictions ‘and judgments rendered against ©

. t

\.

ioner Stubbs in the Criminal Court of Sullivan County - |

n July. of 1954 be and the same are hereby declared null

and ys and said petitioner will be released and dis-

° é \ .

> . : m . my

. cael ‘ ,

, a ° °

a

. . P . : - 7 .

\ ; : ' °

.*, 23a

«

Order, Stubbs v. Bg.

__. charged from the mistody: of the respondent ‘as. Warden:

of the Tennessee State Penitentiary.

It is further ordered, ‘adjudged and decreed by the Court

that the petitioner, William C. Stubbs, is hereby remanded

: to the further custody of the Sheriff of Sulliv an. County

for further prosecution by the State of Tennessee, if the

‘State of. Tennessee so ‘desires.

'. The Clerk of the Court is hereby ditected: to furnish a

certified copy of this‘order to the respondent, Lynn Bomar, -

_ as Warden of the Tennessee State Penitentiary, which will

be authority for the respondent to release the said peti-._

tioner from, his custody, and deliver the petitioner to the

<

_ custody ofthe Sheriff of Sullivan County. The Clerk of.

the Court is likewise directed fo furnish a certified copy.

of this order to the Sheriff of Sullivan County which will

‘be the authority for the Sheriff of Sullivan County to re-

ceive and take custody of petitioner: Stubbs, pending. fur-

ther prosecution by. the State of Senmecshe,

WILLTAM E. MILLER,

Judge.

Approved for entry:

- JAMES L. Rosents,

Attorney | for Petitioner Stubbs.

; Henry C..Fouten,

Assistant: Attorney General,

State of Tennessee. oo fot

. . .

et? yet mf . oO

PT i PRINTER A RE SE RE LN IR

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NOTE: Where it is —- desirable, a syllabus (headnote) will

be released, as is bein ne-in connection with this case, at the time

Ly opinion ig A rag erg She pdoomnteadl yey vod aaah the eng

i) e Court but has bees prepa y the porter Decisions for

.the convenience of the reader. See United States v. Detrott Lumber —

Co., 200 U. 8. 321, 337.

"SUPREME COURT OF THE UNITED STATES

Syllabus _ ,

-MANCUSI, WARDEN v. STUBBS

é

* CERTIORARI TO as UNITED STATES. COURT OF APPEALS FOR:

THE peeon? atl

No. 71-237. Argued April 17, 1972—Decided June 26y 1972

: : New York. State sentenced respondent as a second offender, based

on his. 1964 felony conviction in .Tennessee. Respondent’s petition

for federal habeas corpus, denied by the District Court, was granted

by-the Court of Appeals which concluded that: the Tennessee con-

-viction vielated his Sixth arid Fourteenth Amendment right to

confront witnesses and thus. was not available as the predicate

for a “second offender” stiffer punishment. The State then re-

sentenced respondent to the same sentence, based upon still another

conyiction in Texas. Held:

1. New York State’s ae ance 6f respondent did not moot

the instant case since the respondent’s appeal from the Texas con-

viction is still in the state: courts and therefore New York State

has a present. interest in the availability of the Tennessee con- .

viction as a predicate for the stiffer punishment. Pp. 1-3.

2. Upon discovering that a State’s witness had removed himself

permanently to a foreign country, the State of Tennessee was

powerless to compel his attendance“at respondent’s second trial,

either through its own process or through established procedures —

depending upon the voluntary assistance of another government;

the resultant predicate of unavailability was sufficiently strong not

to warrant a federal habeas ‘corpus court’s upsetting the State’s

' determination that the, witness was not available. Barber v. Page,

- 390 U.'S. 719, distinguished. Pp. 3-7. ‘ \

3. Where a State’s witness is bona fide unavailable,: the retquire-

ments of the Confrontation Clause: are met when prior-recorded

_testimony of the witness is admitted, as occurred in the 1964 trial,

if that. prior testimony bears “indicia of reliability” that would .

afford “the trier of ‘fact a satisfactory basis for evaluating the

truth -of the prior statement.” Dutton v. Evans; = U.:S. 74,

89. Pp. 8-11.

442 F. 2d 561, reversed.

LYRE. LIS ELIS HSE BEL ATE MIN ME YD

perce a tL “ oe AR) ora

u _ ". " MANCUSI v. STUBBS’

Syllabus

REHNQUIST, J., delivered the opinion of_ the Court, in. which

Burcer, C. J., and BRENNAN, STewart, Wurre, BLACKMUN, and ©

PowELL, JJ., joined. MarsHALL, J., filed a dissenting ce in.

Part IT of which Dovctas, J., + joined,

2)

NOTICE : Thie opinfon is subject to formal revision before publication

in ee print of the United States Reports. Readers ape re-

uested to agg) the Reporter of Decisions, Supreme Court of the

ited States, Washington, D.C. 20543, of any Sypeqreghsest or other

aymal errors in order that corrections may be made ore the pre-

liminary print goes.to press. ss ;

SUPREME COURT OF THE UNITED STATES _

No. 71-237

Vincent R. Mancusi, Warden, On Writ of Certiorari to

_ Petitioner, = - | the United States Court °

| Ue “| * of ‘Appeals for the Sec- .

' William C. Stubbs. | ond Circuit. _

" #3 a _. ‘[June’ 26, 1972] | | |

Mr. Justice ReHnauist delivered the opinion of the

Court. | eS _

Respondent Stubbs was convicted of ‘a feloriy in a

New York State court and’sentenced as a second offender ”

under the laws of that State by reason of a prior Tennes- —

see murder conviction obtained in ‘1964. He thereafter

sought federal habeas corpus, claiming that the Tennessee.

conviction was had in violation of his Sixth and Four-

teenth Amendment right td confront witnesses against

him; and thus could not be. used by New York as the pred-

icate ‘for a stiffer ‘punishment. - The District Court de-

~ nied habeas corpus, but the Court of Appeals reversed,

442 F. 2d 561°(CA2 1971). We granted certiorari, 404

U.S. 1014, and reverse for the reasons hereinafter stated.

| I

Prior to our consideration of the merits it is necessary

to deal with a suggestion that because the State did not’

seek a stay of the mandate of the Court of Appeals, but

rather obeyed it, and ‘resentenced Stubbs, this case is

therefore moot. The parties agreed at oral argument

that Stubbs upon resentencing in New York had received _

the same: sentence, based upon still another conviction

in Texas. However, he was appealing from that sentence’ |

on grounds that the Texas conviction was constitutionally

aan

2 °° |“ MANCUST ». STUBBS

-

infirm, and tha} appeal has not. run its course even

through the state courts. — | _

Until it can be said with certainty that. New York may ~

validly resentence respondent to the same term as it

imposed prior to the decision of the Court of Appeals now |

_ under review here, New York continues te have an inter-

est in the availability of the Tennessee conviction as a

support for second offender sentencing of respondent.

The State’s obedience to the mandate of the Court of ”-

Appeals and the judgment of the District Court does not |

moot this case! In Bakery Drivers Union v. Wagshal, -

333 U.S. 437 (1948),.the union appealed from an injunc-

_ tion issued.by the United States District Court on the

ground that it. had been issued in violation of the pro-

visions of the Norris-LaGuardia ‘Act. Dealing with a

4 The dissent states that this case is controlled by SEC v. Medical

Committee, — U. 8. —. In that. case respondent .committee had

. Tequested: Dow Chemical to place the committee’s proposed resolu-

tion on the proxy statement for the annual meeting of Dow Chemical

stockholders. Dow Chemical initially refused. the request; and the

committee thereupon invoked the aid of the SEC to bring suit against”

Dow Chemical-to compel inclusion of the proposal. .’Fhe SEC refused.

to Bring suit, and the.committee then succeeded in having the agency’s °

refusal set aside by the Court of Appeals:. While review of this latter

action was pending here, Dow Chemical’ acceded to the committee’s __

request. - The committee thereby accomplished the purpose for_which.

it sought ancillary assistance from the SEC, not because of compli-

ance by the SEC with the judgment under review, but because of .

. the action of Dow Chemical which was not required to do anything .

by that judgmient. _ ee Cae ee

' There would be ‘a rough parallel between our case and SEC vy.

* Medical Committee if, pending review here of -the ruling of the

Court of Appeals in favor’ of Stubbs, the, Governgr of ‘New York

'- Should pardon. Stubbs. But on the facts we have before us now,:

thé mootness issue is controlled by Bakery Driverg and Dakota

County, infra, rather than by SEC vy. Medical Committee.

id 6 .

MANCUSI ». STUBBS oth tg

“peediminary claim” of mootness in = case, the Court

said:.

“The elaim of mootness is also based on an affidavit

stating that after dismissal of the appeal by the.

_ Court,of Appeals, the union lifted its boycott. Since

@. the record does not show that a stay of the i injune- :

| tion was granted pendin -aetion in this Court, we

must assume that the finion’s action was merely

. obedience to the judgment now here for review.

- We therefore turn to the merits.” 333-U.S., at 442.’

- Much earlier the Court had: alas a similar“ view of

_ mootness in these circumstances: |

“There. can be no question that a ache against

whom a_judgment-fer- money is recoyered may pay

that judgment and bring a writ of error to reverse

it, and if reversed can recover back his money. |

_And a defendant i In an action of ejectment nlay bring ©

‘a writ of error, and failing to give a supersedeas bond,

may gubmit.to the judgment by giving possession

of the land, whichi he ‘can recover if he reverses the-

judgment by by means of a writ.of restitution. In both

cases the, defendant has merely submitted to

. /ment by writ of.error or appeal.” Dakota County

‘/ v. Glidden, 113 U.S. 222, 224 (1885).

j Under these authorities the ¢ case is not moot, and we |

furn to the merits. .

II

In July | 1954, respondent was ‘coma in ‘the Ten-

nessee trial court: of murder in the first degree, assault. |

with intent to murder, and two counts - of. kidnapping. !

The jury empaneled for that trial could have concluded

from the evidence 7 to it that ee a few

a eee

«would let him out at Bristol, Tenne

“a eee _"» MANCUSI v. STUBBS a

days after. his. release from a Texas penitentiary in Jine

1954, kidnapped Mr. and. Mrs. Alex Holm. and .forced

them at gun: point to accompany him in their car. °

Stubbs drove the car and sat’in the front seat, while the .

Holms sat in the backseat. Mr. Holm ‘testified that some-

where east of Blountville, Tennessee, Stubbs, without.

, Saying anything, shot him twice in. the Head and shot and

killed Mrs. Holm. Stubbs ‘then left the, car, obtained a

ride as a hitchhiker, and was ultimately arrested at a road-

block.” At: the time of his arrest, Stubbs explained the

blood on his clothing as having resulted from his having

fallen off a cliff while fishing. : ,

Stubbs took the stand in his:own ‘defense, admitted a

' that. he "had kidnapped the Holnis-at gun poink. ands

- that as he drove the Holms’ car with them i in the back —

seat he at intervals pointed the igun. in’ Mrs. Holm’s .

face. He testified that during the kide he apologized for

forcing a-ride; ,that the Holms th

ee, and would not .

cause him any trouble, and that he-th refore’ laid the pis-

‘tol on the front seat of the car. _He Iso testified that.

near Bristol, Tennessee: ot sie

“It seems awful strange, but thier jus seid

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 no pain

assured him. they °

or nothing, ... 1 felt a sharp pain that seemed: to ts

\ start in my head and go all the way down through

me and I reached up with both hands and heard

this loud roar, bang .: . Stuff started down my:

Z -_face~and down my hint: and all that I could think -

“of is. that he has gpt the gun . . . I just. went. out-

_ side’ through the Car ,door .:. ae

f

After that, Stubbs testified, “everything ¥ went “black.” - -

&

MANCUSI » STUBBS 3 te. ees

- Nine years after his state court trial for murder, Stubbs

_- sdughg release on federal habeas corpus from the. United

| ‘States, District. Court for “the. “Middle District of

Tennessée. t

He successfully urged upon that court the contention

_ that he had been’ denied the effective assistance of coun-

sel in this .1954 trial because counsel had been appointed

for him only four days before the trial: took place. '

Stubbs v. Bomar, Civil Action No. 3585 (MD Tenn: 1964).

The ‘State of Tennessee then elected to retry him, and

‘did so in 1964; . At that time Holm, who had been born A

in Sweden but had beeome a naturalized American.

_ citizen, had returned to:Sweden and taken up perma- ~

nent ‘residence there.’ Tennessee issued a - -subpoena

| serve Holm at ‘at his last known United States address.

Holm’s son as a witness and aissliadl from him the fact .

that was ‘sent to Texas authorities in an attempt ta ,

No service having h obtained, the State at trial called -

that his father n@y

vate objection on constitutional grounds, the Tennessee

tridl judge ‘then permitted Holm’s testimony at the

_. earlier trial to be read to the jury. Stubbs again took — |

. the stand, recited his version of the évents, and was

again eonvieted. This conviction was in due course

_ affirmed by the Supreme Court of Tennessee. Stubbs.

_ y. State, 216 Tenn. 567, 393'S. W. 2d 150. (1965).

Respondent has challenged the present second of-

fender sentence that was imposed upon him by the New.

‘ork courts on the ground that his 1964 conviction upon —

ah retrial was constitutionally infirm because he was denied

his. Sixth and Fourteenth: Amendment right’ to confront

the witness Holm. The Court o

contention, relying on this

Page, 390°U. $.°719: (1 ;

- Barber, a prospective witriess for the prosecution -

rt’s opinion in Barber V.

\e Ps

id

resided in Sweden. Over appropri-

ppeals sustained this —

> °