# Respondents Brief — Mancusi v. Stubbs > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0060%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1972 - **Citation:** 408 U.S. 204 ## Text eyes 2 oe ° Ko... ¥. IN THE Speen 4 Ss Learn amen e pare A - +.) - i 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 - P ¢ Respondent. . . ’ eo. . e . . y 2 . 7 . 1 . 4° , ev . > ope st ’ > ee ’. SUBJECT INDEX. ® . es 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 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 @ * es i é _ 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 i ad *s oe z oe set 2. e. ° fal hig AROS cis alae , ‘ : ‘ ’ 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 N i ; ee \ > a + ta Vv? . . ‘ ’ : : 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 . ¢ 2 NP eee m7 i . é hte x * i ' y ° * ‘ ° 4 ' 4 > he . : \ ie 4 : a ‘ > BEL ‘ : +94 % © e ” 3 oe é , 2 4, be f6 , are a eis \ 5 4. g ?. Bs Le, ~~ . b 3 ° “* ee 7 ; oe a . o “3X eee fae rp ene oid vik” ’ ’ } 4 4 $ : y “ * ~~ ea . ;, ; B : * }. . é , ' : ’ ‘ . — ‘ er. “( e@ ‘ \ . om ; j \ y \ : ‘ 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 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 \ ; ; . \ \ . 5 : . , = \ ; : : bs faced \ \ eee re te Se BR Aygo Ch RIT Brg LES LAD DY, CR TERE DY LAS BOT SENG MR t: ecm ; . . peace : 2 . oe te 3 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 : 4 ; of \ 442 . . Pie a , bs ’ ' ‘ be * % : ' . ; « ’ . ° ; i 4 ; 7 Ad bg . 4 mae , i, ° -” e o# Z . ‘ . 7 ‘ . of 1 a a ‘ a " renee 7 ’ oe emer feninlt manly wiht FG , ' . fh 4 ; oe. ‘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 ee » : * x ¢* ’ ; . ; ” he ., oy ‘ A be ri a ‘ ‘ id 4 . ’ ‘ . . . . , ‘ Ks * '\ 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. * « . 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 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- ~~ . : 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 ° : * ra - ° x - . ‘ . ae . ’ . : a : ° ; . . . . . . ° ° 3 . ° . . . ° . oe . , : ss . ‘ . : . ad - " - . . . : bd . - * . . bd . . e: . . bs > * e : 4 : ° . . ' . Py . ry e ° . , 7 - o « : ‘ ; . ss . . : . . e . 3 . * . . . e ~ r . . S 2 e : ° . ‘ . . ; . “3 : . . . . 4 ; ; ; . ; yo = . / aN ‘ . ba ‘ . oe . Mo ee : : ©. a . x e . é . : ~¢ ’ ei . ° . : . 5 : : ° , . t ; : ~~ . “ : . : ° . * \ ‘ : ’ . ° ~ . ‘ - . ‘ 3 ° F - . : : , : 7? . - : . _ . : a . . ‘ ° . ‘s . a . . ° : . . . ‘ . . a i pee ca, Cora ; . siininieaitiaiad naan — es 5g ape NAS AERTS: PBN NE ‘ eM BE ROME IAG Cp ENNIO PIPL RIND Ie TT TR 3 ; . paar sateen Ne PROH ae Tg , tem at . ¥, 3 LOE LLM NIL IMT TPR HL er we ; om , ‘ ? a . ; ; * : : : P - - . ‘ . . . . 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 — > ° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0060%3A6. Public record. Not legal advice.