*2 around the trial testimony of Linda Ma- CLARK, and Circuit Before MORGAN ness. Linda was not called aas witness GORDON, Judge. Judges, and District for the state. Petitioner Maness there- fore called her as witness, a defense and MORGAN, Judge: R. LEWIS Circuit immediately sought to treat her as an Petitioner-appellant Gary Maness filed adverse witness so that he could cross- corpus, for a writ of habeas petition examine and impeach her. The trial manslaugh- attacking his conviction court ruled that she was not an adverse He by the state of Florida. com- ter therefore, witness and under the Florida he was denied due solely that plains rule, voucher Maness impeach could not by the state trial court’s process of law testimony. her Linda testified that she pre- of the voucher rule to gone had shopping on the afternoon in cross-examination of a witness vent his question and returned to find the child him, to by exclude evidence called injured. She also testified that she did impeaching that witness. Under the not know Misty how had sustained her party calling a witness injuries. credibility, “vouches” for that witness’ sought Maness to introduce three may not attack it. We and therefore evidence, items of all of which were ex- process in the denial of due state find no cluded, in order to contradict Linda’s tes- application of Florida’s evidenti- court’s First, timony. sought he to introduce rules, we affirm the district ary some letters by written to him his wife petition. denial of the court’s in which she allegedly stated that she knew Maness had not Misty, killed I. gone that she had not to the store on the manslaughter Maness was convicted of question.1 Second, afternoon in Maness daughter, of his infant in the death Misty, attempted Maness, sister-in-law, to call his Dana injuries as a result of who died testify that Linda had made multiple and frac- which included bruises exculpating thigh. tures of her left arm and (but inculpating Third, not herself). investigation, After an Maness was ar- attempted ness also to have his mother daughter’s for his death. He rested testify as to an out-of-court statement he made a sworn statement had her, made Linda to which he hoped Misty struck twice on the afternoon be- would cast doubt on credibility he and wife had taken her fore his to by contradicting one detail in her testi- hospital injuries for treatment of the mony. All of this evidence was excluded days from which she died four later. He by the state trial authority court on the that this had occurred also stated while of the Florida voucher rule.2 it; guilty what she from done that she felt about The letters Linda Maness which were doing petitioner; proffered and that she was not at trial were not submitted with the during April petition corpus at the store the afternoon for writ of habeas filed (Emphasis added.) The dis- 1971.” the district court below. found written trict court letters fact, findings the district its court allegedly “she that she was admitted Maness’ the exclusion of Dana stated petitioner pregnant; that she knew had not hearsay upon was based rule.
II. three out-of-court confes- None these into evidence was allowed under sions grounds his case for federal hearsay rule which does Mississippi single relief recognize penal admissions Mississippi, of Chambers exception hearsay as an interest (1973), L.Ed.2d the combined effect of exclusion. Thus Mississippi that a trial court’s held *3 hearsay and Mississippi the voucher rules rigid application of that state’s voucher introducing prevented from Chambers evidentiary rules hearsay and had result- strongly implicated which process. ed a denial of due McDonald, Chambers, as the rather than argues parallels that factual between his party. guilty case and Chambers demand the same re- sult here.3 argued that Chambers holding should read as that the murdering Chambers was convicted of applied in voucher rule cannot be a state policeman who was killed in the after- operates it proceeding if involving math a barroom brawl of development hamper or the defendant’s arrest, sizeable crowd. After chambers’ theory. a defense Ma- presentation of man, McDonald, another Gable made a recognizes ness also that police he repu- confession to later closely to the Chambers was tied facts in diated. At was Chambers’ there ease, that there is no but asserts that little that hard evidence Chambers had his case appreciable difference between officer, part shot of and Chambers’ interpretation Chambers’, if his of that it defense was to show was in fact Chambers, above, is stated correct. McDonald who had committed the crime. McDonald, believe, however, call Since the state did not We the inter- call him pretation Chambers had to as his own offered by of Chambers Supreme witness. He introduced McDonald’s is The ness too broad. Court confession, written but on question cross-exami- did the wisdom common state, by nation repudiat- McDonald law voucher rule in the context of crimi- having trials, ed it merely as been part particularly of a nal in the situation by scheme one get by initiated Stokes to faced a witness Chambers: vital jail, out unlikely Chambers of on whereupon they yet defense direct exami- proceeds would all share in the give nation to defense of a law- favorable testimo- bring suit Chambers would against ny brought could be witness stand city. McDonald had by only by foregoing Since been called the defense’s the abili- defense, impeach he could not be ty to cross-exam- cross-examine by attorney However, ined Chambers’ the Court under the witness. did not rule, Mississippi voucher which is for all base its of reversal Chambers’ conviction practical purposes identical to the vouch- on a violation of his Sixth Amendment er rule of right Florida whose the witnesses is confront challenged Texas, 400, here Maness. him. 380 Further- Pointer v. U.S. more, (1965). Chambers offered three L.Ed.2d 923 different Rath- er, who would have witnesses Court concluded that a testified that combina- he, McDonald had admitted that and the hearsay it was tion of the rule voucher Chambers, who shot applied, the officer. as “denied [Chambersl however, appeal, February 21, parties Supreme The of both on on briefs Court point tria! the state court excluded out The district court determined there was retroactivity grounds question of the voucher rule. on no Chambers Supreme disposition of Maness’ contentions would stated that it was Our because the same, however, announcing principle whether no new of constitutional be the the exclusion Chambers, hearsay; supra, or hence 410 U.S. at was law. based unnecessary affirming In the district we it to determine whether S.Ct. 1038. court’s find “clearly finding fact relief to we was denial district court’s question express view on the Chambers' no erroneous.” retroactivity. was convicted on October Chambers, supra, was decided the United traditional and fun- deciding trial in accord with In this case on basis of process.” Chambers, presented of due ques- damental standards we are with a Chambers, supra, 410 degree: was Maness’ defense tion of reaching this conclu- persuasive” degree S.Ct. at 1049. “less to such a sion, carefully extensively the Court to a must conclude that his fair hearsay pointed out that violated? While Maness would parallels excluded from Chambers’ trial were superficial factual argue that outcome, subsequently “made and offered at trial it is we believe nec- control provided closely under circumstances that con- essary to examine the effect on reliability.” siderable assurance of their worked the voucher rule’s his defense supra at at 1048. application. The cumulative effect the trial court’s strongest point argu- of Maness’ rulings rendered Chambers’ defense “far have had is that he should ment persuasive than might less have been subject Linda to cross-ex- opportunity to *4 given opportunity he been an had to sub- that an ac- amination. Chambers held ject McDonald’s statements to cross-ex- Amendment to con- cused’s Sixth or had other amination the confessions “against” witnesses him is not front Chambers, admitted.” supra been 294, at strictly limited to the confrontation of at 93 S.Ct. Chambers, witnesses called the state. apparent from reading It is a of the supra at S.Ct. Cham- 297— opinion Court’s that Supreme inability, Chambers’ bers’ because of the voucher palpable miscarriage jus- was a of trial to cross-examine McDonald was state court had tice. The excluded prong evi- thus one Court’s strongly pointed finger that the dence of had been denied that Chambers due while the at McDonald guilt evidence process. At Maness’ Linda testi- was minimal. against Chambers Fur- slapped Misty had in fied that he the thermore, inculpation spelled addition, McDonald’s day question. on the in In face exculpation, since the extrajudicial Chambers’ state’s statement to Dana theory precluded Maness, the evidence more her letters to as well as ness and responsible person one testimony (contrary than killing. the to his Maness’ own Chambers, supra at statement) present S.Ct. put her in the sworn during period Misty ap- when home the injuries. the fatal parently sustained read We cannot Chambers as least a Maness’ defense involved at us, have broadly as Maness would be veiled accusation that rather than stated, “In cause the explicitly Court he, injuries. It would cer- inflicted the reaching judgment, this we establish no tainly integrity “the of have furthered principles new of constitutional law. Chambers, fact-finding process,” su- the any holding signal does our diminu Nor pra at if Maness S.Ct. respect traditionally in tion the accorded her. had been allowed to cross-examine to in the the States establishment implementation of their own Secondly, there is the written evidence Chambers, procedure.” rules trial of the letters from Linda to Maness supra at at 1049. If Cham purportedly contain material tend- bers was intended to pall ing exculpate cast a of un Unfortunately, Maness. constitutionality upon all part state these letters are not of the record rules, it would have a appeal impossible established new it on is therefore principle of constitutional law. Like any possi- evaluate with assurance wise, suggest if Chambers meant to impact had on Ma- they may ble have process however, note, due is denied when the exclusion ness’ defense. We pursuant evidence long initially of defense excluded the state trial court standing rules of evidence a irrelevance results in their these letters because of defense, persuasive less it would also also ruled that testimony; to Linda’s principle of have established new con they did not contradict the after- law. on stitutional at home that she was not and Dana Maness is that Ruth neither question. ruling is an noon in Such what Linda knew caused petitioner nor letters, content of indication that Misty’s offered death. Petitioner context, per- was less when viewed in explanation that unrealistic rather to Maness’ defense suasively favorable down, gotten may fallen baby have allegation than abbreviated of their crib, in or hit herself caught in her petition. in the habeas contents record, with her bottle. This head points Thirdly, to the ex inability any positive to find indicia our clusion of Dana hearsay testimo- reliability allegedly to whom Linda admitted that Maness, and the ny of Ruth and Dana baby, not touched Maness had for our in- unavailability the letters happened know what had Linda did not spection lead us to conclude gone during to the store and had not deprive application did voucher rule’s question. We are reluctant afternoon accord with notions trial in hearsay testimony to attribute to this embodied in the fundamental fairness from Maness’ sister-in-law the same de process due clause. reliability gree of trustworthiness and Supreme which the found voucher rule The common law testimony of the three witnesses to subject of occasionally been the criti McDonald confessed whom Chambers. judiciary. .by the cism federal See independent there was cor Chambers, 97, 93 supra at 295— of McDonald’s roboration admission. 1038; Prince, United F.2d *5 asserts that out-of-court 655, (5th 1974); 659 Cir. United States v. indicia statements here have of reliabili Torres, (9th 1973); 477 922 F.2d Cir. However, ty. prima this assertion rests Freeman, 302 F.2d United States v. (2d 347 rily upon fact Maness’ testimo 1962). Cir. Its demise in federal ny, proffered his sister-in-law’s testimo hand; is 607 of courts at Rule ny and the letters which have not been recently promulgated Federal Rules of us all made available to cross-corroborate Evidence, 1, July provides: 1975 effective each other. may credibility “The of a witness be at Finally, there is testimony of Ruth including any party, the party tacked petitioner’s mother. She Nevertheless, calling it is him.” clear testified that her would have Linda told evidentiary need not that state rules baby blankets some found in the evidentiary rules images ap mirror Maness home in the course police plied in courts in order to the federal investigation had become bloodied as a muster. Dutton v. pass constitutional period. result of menstrual Linda’s This 210, Evans, 74, 400 91 27 U.S. extrajudicial statement Lin- contradicts process (1970). “The due L.Ed.2d 213 testimony da’s the source of the interpreted always has clause been as baby’s was the cracked gum, blood by raising there- wide permitting the states latitude in question of Linda’s overall fashioning proce evidence and rules of credibility. Again, as with Dana Ma- Smith, v. F.2d dure.” Bassett ness, we do not find in a close relative’s (5th 1972). Cir. Chambers not “persuasive assurances of indeed, explicit principle; altered this trustworthiness” cited in ly respect traditionally “the reaffirmed Chambers, supra at accorded establish of their implementation The ment and own voucher rule in procedures.” undoubtedly case rules and Maness’ worked to his sug- supra, detriment. evidence Some which gests his innocence at 1049. Under all the facts and was excluded. How- S.Ct. ever, circumstances, say testimony, simply the net effect of cannot petitioner’s testimony, own to a the excluded Maness was denied his fair letters, proffered and the trial. retry Gary proceeding in a fair which court de- judgment
The of the district the facts in testing admits for the all of habeas petition for a writ nying the truth. corpus is respectfully I dissent.
Affirmed.
CLARK, Judge (dissenting). Circuit put the tender plan
The divine Misty into the hands of
life of and in- parents is both unknowable
comprehensible. The distinction proof majority perceives between v.
wrongly excluded Chambers Missis- in the case at bar
sippi and that refused as obscure to me. is almost SPENCE, Donald E. against Gary The state’s Plaintiff-Appellant, upon his confession. The predicated was repudiation. was built its defense he “took the Gary tried to show that al., Patience LATTING et wife blame” because of Linda, concern his Defendants-Appellees. enhanced a belief that she was No. 74-1288. Maness, his sister-in- pregnant. Dana law, testimony which offered tended United States Appeals, Court of exculpate Gary his and corroborate Tenth Circuit. missing letters from recantation. Argued Nov. Linda, according only to our infor- wife content, only sup- to their mation as Decided Feb. statements but also sub- ported Dana’s Gary’s theory stantiated the defense.
Misty received fatal wounds while she custody Gary or or *6 Gary’s
both of them. confession as- subject responsibility,
sumed sole possibility
implausible self-injury. Dana’s
Linda’s letters and cast more than a reasonable
tended to guilty. Gary
doubt that alone was
letters and were excluded
solely because of Florida voucher
rule which sanctified Linda’s by Gary.
from attack perceive process principle
As I the due
announced commands every material source of evidence as princi-
to what was said and done
pal players tragedy in this domestic
should be laid before the triers of fact. minimum,
At a it seems to me that this must be remanded for a determina- authenticity
tion of the and content of If these were her letters Linda’s letters. described, my read as it further is relief
view that should
granted required and Florida should be