Gregory Arnold Murphy, Cross-Appellant v. Dewey Sowders, Superintendent, Cross-Appellee

— -, 1842, uсation, the side of infringe the road does not on right Since, to life. 1846, (1986) (setting understandably, out 90 L.Ed.2d demonstrated, plaintiffs have or even scrutiny two-pronged equal test strict suggested, City’s that the policy is not ra- context) protection (quoting Fullilove v. based, tionally reject process we their due 448, 480, Klutznick, 448 U.S. challenge. (1980)). 2758, 2776, L.Ed.2d 902 How- ever, promotes public safety, police Eighth C. Amendment here, infringe on and it does not is case police Plaintiffs’ final claim is that right, presumed is valid a fundamental highspeed pursuits officers’ use of ap upheld plaintiff unless the “can and will be prehend traffic offenders violates the cruel demonstrate that there is no rational punishment and unusual clause of the regulation ... and the nection between Eighth argu Amendment. We find this promotion safety proper- completely ment without merit. It is well Johnson, 238, 247, ty.” Kelley v. Eighth prohibi settled that the Amendment 1440, 1446, (1976). against punishment tion cruel аnd unusual arguing City’s policy In in applicable only to those convicted of life, fringes right on his fundamental See, e.g., crimes. Wolfish, Bell v. plaintiff heavily opin relies on this court’s 16, 535 n. 1872 n. Depart Memphis ion in Police Garner (1979); Ingraham Wright, L.Ed.2d 447 ment, (6th Cir.1983), 710 F.2d 240 on aff'd 1401, 1408-09, grounds, Fourth Amendment City Roberts v. 85 L.Ed.2d (6th Cir.1985). Troy, 773 F.2d 722-23 Gamer, addressed the “constitutionali we fleeing III. ty of Tennessee’s felon statute ... Fourth, Eighth Fourteenth

under Accordingly, judgment of the district analyzing Amendments.” Id. at 241. court is process the due the issue under clause AFFIRMED. Amendment, began by the Fourteenth we recognizing right life funda is a right. recognized,

mental We then “Laws infringe rights on must fundamental express only the ‘narrowly drawn to ” legitimate state interests at stake.’ Id. at Gregory MURPHY, Arnold Wade, (quoting Roe v. Petitioner-Appellee, Cross-Appellant, (1973)). the statute at Since issue Gar police officers to use ner “authorize^] SOWDERS, Dewey Superintendent, deadly capture force order to unarmed Respondent-Appellant, felonies,” fleeing suspects from nonviolent Cross-Appellee. at concluded that the statute we id. Nos. 85-5338. swept broadly thus violated due too process. Id. at 247. Appeals, States Court of Sixth Circuit.

In stark contrast to the statute at issue Gamer, policy challenged here does Argued Dec. 1985. permit deadly officers to use force to Sept. Decided Rather, apprehend traffic violators. Rehearing En Banc Rehearing and most, policy provides, that officers 3, 1986. Denied Nov. is, follow, pursue, suspects. poli- following cy of traffic offenders who re- pull obey

fuse to an officer’s directive any knowledge questioned of it. when about the incident would have disavowed Armstrong, Atty. Ky., David L. Gen. of Frankfort, Ky., Joseph argued, R. Johnson respondent-appellant cross-appellee. Heft, argued, Frank W. Jr. Jefferson Louisville, Defender, Ky., Dist. Public petitionеr-appellee cross-appellant. MILBURN, Before KRUPANSKY BROWN, Judges; Circuit Senior Cir- Judge. cuit KRUPANSKY, Judge. Circuit ap- Commonwealth of has pealed the order of the United States Dis- trict for the Western District of Ken- (1985), tucky, F.Supp. granting corpus petitioner-ap- writ of habeas pellee Gregory Murphy (Murphy), Arnold in who had been tried and convicted a Ken- tucky state court for the murder of a wom- granting an October of 1979. writ, the district court concluded that Mur- phy’s right free from legislative enactments had infringed by the Commonwealth. primary consequence A issue of fronting appeal this court on concerns the scope prohibition of the ex Article I of the since Constitution the Com- monwealth had conceded that the Kentucky Rule of Criminal Procedure 9.62 (RCr 9.62) legislative was a act that was retroactively effective at the time of Mur- phy’s trial. existing legal precedent

A review disclosеd that Court ad- presented dressed the issue here in its fac- tually indistinguishable seminal decision of Utah, L.Ed. 262 At the time that the homicide was com- mitted and the indictment was returned Hopt, the 1878 Criminal Procedure Act of felons, provided Utah that convicted unless pardoned by governor, foreclosed were isting testifying any judicial action or restrictions the competency because, proceeding as a matter of certain classes of as witness- they credibility. lacked After the date of es, relate to modes of only, ... prior to alleged homicide but the trial state, upon grounds public which the legislature promul- the state policy, may regulate pleasure. Such gated repealed an act which the section regulations of the mode in which the imposed the absolute the Utah law that bar constituting guilt facts may placed be against give testimony judicial felons to applicable before the ‍‌‌​‌‌​​‌​‌​‌‌‌‌‌​‌​‌‌​​‌​​​‌‌​​​‌‌​​​​‌‌‌‌‌‌‌‌​​‍can be made to proceedings. prosecutions had, or trials thereafter trial, without reference to the date Hopt’s permitted trial court of the com-

At the charged. a felon Emerson who confined mission of the named offense penitentiary as a result of a murder the Id. S.Ct. at 210. appear prosecution to as a wit- conviction operative procedural The facts of the and, objection of the defend- ness over case at bar track the facts of with ant, testimony which admitted Emerson’s precision. The record disclosed that Mur- defendant in the crime implicated the phy Kentucky was indicted in a state court charged against him. The of homicide ret- on November 1979 for the crime of application of the roactive controversial allegedly homicide committed on October legislative in issue act contested 18, 1979. At the time that the homicide upon appeal. the state was committed and at the time that the language In clear and concise which has returned, indictment was RCr 9.62 was the successfully scrutiny withstood both prevailing provided: law of that state. It time, and erosion of Court A conviction cannot be had the tes- stated: timony accomplice unless corrobo- simply enlarge Statutes which the class tending rated to competent who nect the defendant with the commission testify in criminal cases are not offense; corroboration prosecutions in their if merely not sufficient shows that the prior pas- crimes committed to their committed, offense was and the circum- sage; they criminality do not attach In the of cor- stances thereof. absence done, previously act and which required by the court roborаtion done, aggravate was innocent when nor jury shall instruct the render a verdict committed, any crime theretofore nor acquittal. provide greater punishment therefor prescribed than was at the time of its subsequent Hopt, As in to the date of the commission, they degree, nor do alter the alleged prior homicide and indictment but measure, or lessen the amount or Murphy’s to the trial of necessary made to con- which was legislature act promulgated an which viction when the crime was committed. trial, his pealed Murphy’s RCr 9.62. At 589, 4 Id. at (Critten- co-defendant Norman Crittenden den), whom the defense characterized anas concluding opinion, its em- accomplice, petitioner testified that alone phasized its enunciated rule of law with the that, he, following reasoning: committed the murder and Critten- den, merely Although an observer. which do increase [Alterations testimony only Crittenden’s afforded punishment, change ingredients nor Murphy committed the direct evidence that of the offense or the ultimate issue, the record reflected sub- homicide facts establish but— evidence, stantial circumstantial albeit con- leaving untouched the nature of the flicting, tes- that corroborated Crittenden’s the amount or crime and timony implicated Murphy credited essential to removes ex- conviction— trial, jury.1 At the conclusion of the certain class of had been re- witnesses Murphy requested the trial court to in- Hopt, moved. As impediment that he could not be struct convict- against testimony of a felon and/or an charged solely ed the offense uncorroborated was not testimony of Crittenden. competency of such to testify, individual requested charge court denied credibility assigned but rather to be petitioner was convicted. testimоny as a condition of his competency. instances, repealed both statute de- Historically, Kentucky followed creed the of a felon and/or un- permitted accomplice common law and tes corroborated incredible as a timony without corroboration to legislative matter of law. enact- until the evolution and final en repealed ment which a statutorily imposed 9.62, actment of RCr at which time that impediment, which declared competent enactment deemed otherwise accomplices of felons or accomplice testimony of an to be incredible judicial be in proceedings unless in inadmissible as a matter law corroborated be- Hopt, was, only in cause such degree. change testimony some As the as a matter of law, incredible, by repeal simply enlarged effected of RCr 9.62 was that the class of credibility impediment legis competent which was to be considered to testi- latively imposed upon fy of a and was in effect.2 presence incriminating operate 1. The disadvantage. testimonial and to an individual's See corroborating Graham, other evidence Crittenden’s testi- Weaver v. 450 U.S. 29 n. mony developed during implicitly (1981); trial was 964 n. Dob by Murph/s legal Florida, 282, 293, ceded counsel as demonstrat- bert v. 2298, 432 U.S. 97 S.Ct. following by request (1977); Ohio, ed his for the instruc- v. Beazell seeking 167, 170-71, 68, 69, tion in lieu of an instruction for a 269 U.S. 70 L.Ed. acquittal by verdict of as directed RCr (1925); Carolina, 9.62: Mallett v. North 181 U.S. 589, 593-97, 730, 732-33, ACCOMPLICETESTIMONY 45 L.Ed. 1015 (1901); Utah, 343, 351-52, accomplice per- Thompson An is one of two or more participating (1898); sons crime, in the commission of a 42 L.Ed. 1061 Gibson 565, 590-91, principal Mississippi, either as a actor in its com- present assisting (1896); Missouri, mission or one and is who is 40 L.Ed. 1075 Duncan v. holding 377, 382-83, encouraging or is or himself in readi- 38 L.Ed. you Utah, ness to assist in If its commission. be- Hopt v. witness, 202, 209-10, lieve from thе evidence that the Nor- L.Ed. See Crittenden, accomplice Tribe, man was an in the generally L. American Constitutional Law indictment, (1978); Annot., murder mentioned in the then (1978 § 10-3 & defendant, you Gregory cannot convict the A. Supp.1985). Murphy, on basis of of the said Analysis Kentucky’s repeal of its accom- supported by Norman Crittenden unless it is plice provision necessarily corroboration in- tending other substantial evidence to connect volves an examination of the effect of that ac- defendant, Gregory Murphy, A. with the petitioner light purposes tion on of the of the question, commission of the offense in protection constitutional embodied in the ex any other is not sufficient for that Supreme clause. The Court has de- purpose merely if it shows that such offense inquiry scribed the individualized nature of the by someone and committed the circum- degree to determine the сharacter and of altera- stances under which it was committed. The procedure necessary infringe tions of you court instructs as a matter of law that prohibition against Norman an Crittenden is legislative enactments in its decision in Beazell charged by testimony. offense virtue of Ohio, 70 L.Ed. 216 explicit- The last sentence of RCr 9.62 (1925): ly provided: procedure Just what alterations of will be required In the absence of corroboration as transgress held to be of sufficient moment to court shall instruct prohibition the constitutional cannot be em- acquittal. render a verdict of general braced within a formula or stated in a recog- 2. The Supreme proposition'. degree. States Court has The distinction is one of nized on provision numerous occasions that the ex But the constitutional was intended apply effecting personal rights against clause does not to laws tо secure substantial changes arbitrary oppressive legislation which do not affect sub- ... and rights though they stantial way legislative even in some not to limit the control of remedies teachings of the Murphy S.Ct. at 210. Applying appear repealed Hopt, per- would has reasoned that (1) crimi- 9.62 did not attach testify of RCr mitted an without cor- committed; (2) previously nality evidence, act roborating ergo, lesser any crime theretofore commit- aggravate “degree” proof “amount” or was essen- ted; (3) greater punishment provide than tial to his conviction. of the commis- prescribed at the time blush, language At first in Hopt on crime; (4) degree or alter or sion Murphy’s reasoning its face and appear the amount or measure of the lessen compelling. Upon reading a further necessary to sustain a conviction when the however, opinion in Hopt, Court’s Mur- diffеrently, committed. Stated crime was phy’s above-quoted reliance on the state- indicted, Murphy crime for which Court, misplaced. immediately ment is therefor, prescribed punishment heavily after the sentence so relies degree proof necessary quantity or that, upon, juxtaposed “But alterations guilt all remained unaffected to establish punishment, do not increase the nor A repeal of RCr 9.62. corroboration change ingredients of the offense clearly occupy did the sta- requirement ultimate facts to establish crime nor did its tus of an element of the leaving the nature of the untouched but— crime and the amount or reasonable stan- elimination alter the doubt traditionally protected criminal dard which essential to removes exist- conviction— The same essential facts were defendants. competency restrictions required to estаblished the evidence witnesses, certain classes of as required Murphy’s trial as were to be at procedure only....” late to modes of proven prior of RCr 9.62 to (em- 590, Hopt, 110 4 at 210 U.S. him of the crime of murder. Ac- convict phasis supplied). Reading these two sen- Supreme cordingly, the dictates of the together, apparent it is that Justice tences suggest in a conclusion that Hopt contrasting those Harlan was laws which legislative repealed enactment retroactively change of the elements a act 9.62 did not constitute an ex proving or ele- crime the burden of those applied Murphy. as merely ments alter the with laws which urged this court to distin- context, in procedure of a trial. Read Jus- Hopt

guish Court’s decision Harlan’s reference to the or tice by asserting pro- from this ease “proof” in the initial sentence amount of of vindicate his conclu- nouncements obviously proof referred the burden retrospective application of sion that government prove must its by which the repealed Kentucky statute RCr 9.62 sub- evidentiary proof facts which position stantially disadvantaged his in vio- placed jury. a This could have been before right to be free lation of his constitutional interpretation supported is further applications from of law. ex in this third sentence series: “[Procedural] plumbed in argument is thrust of this regulations of the mode ‍‌‌​‌‌​​‌​‌​‌‌‌‌‌​‌​‌‌​​‌​​​‌‌​​​‌‌​​​​‌‌‌‌‌‌‌‌​​‍which facts following passage Hopt: from constituting guilt may placed before be legal applicable can made ... without Any statutory alteration of the be commission of authorize reference to the date of the rules of which would evidence (emphasis sup- charged.” offense Id. proof, less in amount or plied). Considering all three sentences to- degrеe, required when the of- than was committed, drawing a might, respect gether, Harlan was Justice fense was offense, sharp the burden obnoxious to the con- distinction between of that be prosecution was re- which inhibition stitutional the manner in quired prove its case and laws. 171, (citations omit- 269 U.S. at 46 S.Ct. at 69 which do not affect and modes ted). matters of substance.... 210 by evidentiary might 179, United (1983); a state rules 78

which L.Ed.2d 160 Larios, States v. permit prosecutor to do so. a state 938, a (9th 640 F.2d 940 without Butler, regulate, impli- United States v. could Cir.1981); 636 cations, “may placed facts which denied, 727, cert. (D.C.Cir.1980), F.2d 729 jury.” before the Such construction of 1019, 3010, 69 L.Ed.2d Hopt mandated case; the facts of that is Hoskins, United States v. (1981); 392 628 by permitting Utah convicted felons to tes- denied, 295, cert. (5th Cir.), F.2d 296 tify enlarging the facts which 987, 406, 66 L.Ed.2d 249 making could consider in its determination Danzey, United States v. (1980); 594 F.2d enlargement of but this denied, cert. 905, (2d Cir.), way in no affected the burden of 951, 2179, (1979); 60 L.Ed.2d 1056 prosecutor, placed upon inasmuch as all Smith, United States v. 563 F.2d the essential elements the crime still denied, (9th Cir.1977), cert. required beyond to be established were (1978); Thus, this reasonable doubt. court refuses Paduano, United States v. 549 F.2d equate Justice Harlan’s reference to denied, (9th Cir.), cert. “proof” synonymous with “evidence” (1977); and, accordingly, rejects Murphy’s argu- Dodge, States v. (8th 538 F.2d ment.3 Jones, Cir.1976); United States v. 486 F.2d interpretation This court’s denied, (8th Cir.1973), cert. also with the consistent time-honored precedent which instructs the trier of fact Levi, United States v. 405 F.2d applied determining the test to be (4th Cir.1968); Wigmore on Evidence guilt of an accused in a criminal action (3d Ed.1940). § produces greater is not side num appear existing It would precedent presents greater ber of witnesses phrase “the amount ... of the evidence; quantity of but rather which wit proof” necessary a verdict of ness, evidence, and which in the mind of Hopt, within contеxt of to be factfinder, accurate, is the most trust uniformly applicable actions, in all criminal generally worthy, and most credible. Ac greater assumes interpret- coherence when cordingly, single of a witness degree ed to mean the of is assigned which is a likelihood of truth is required in each criminal action to convince support finding sufficient to a of and the factfinder of the of the accused justify would in a verdict accordance with beyond doubt, a always reasonable mindful testimony, though such even a of number of the arriving admonition that the test for witnesses have testified to the con at the is by verdict not to be measured trary if, after consideration of all of the produces standard of side great- which assigns evidence in the the factfinder er number of presents witnesses or greater accuracy belief and reliabili greater evidence; quantity оf but which ty of the one witness. See Brown v. Da witness, evidence, vis, and which in the mind of 1142, (6th Cir.1985); 752 F.2d 1144-45 assigned the finder Arrington, greater of fact is States 701, 719 F.2d denied, degree accuracy, reliability, cert. of (4th Cir.1983), trustworthi- 705 ness, Moreover, 1028, 1289, credibility. (1984); the stan- King, United States v. applied dard 119, determining to be 703 F.2d 125 the de- denied, cert. (5th Cir.), amount, 837, gree, 104 or measure of neces- 127, 123; 845, 104 sary 78 L.Ed.2d to convict an accused in a criminal 138; 857, 104 78 L.Ed.2d 464 interpreted U.S. action has Supreme court, Although apparent this court finds the Third Circuit’s that the Civil like be- court, Virgin erroneously decision in interpreted Judge Government Islands v. Civ- fore this of il, (3d Cir.1979), distinguish- "proof' meaning 591 F.2d 255 to be Harlan’s reference to as "evi- bar, able from case at see note it is dence." Id. at 259. infra

211 depriving any him of vantage Murphy by in the follow- terms in constitutional Court Hopt, right. As in the amount language: substantial him not proof necessary to convict recognized of standard The constitutional Winship expressly repeal of the above section case was reduced in the an accused protects appeal, as and after the a phrased one before because both “proof on except a against conviction convicted him it could have factfinder doubt_” In sub- reasonable beyond a doubt beyond a reasonable believed discussing the reasonable- sequent cases incriminating present- sufficiently departed standard, never we have doubt simply repeal of 9.62 ed to it. The from rule or this definition of who were enlarged the class Winship cen- understanding testify in crimi- competent decreed serves, omit- purposes tral [citations post was not ex in its nal cases and facto short, person shall be no In ... ted] crimes com- prosecutions a the onus of criminal to suffer made to its rescission.4 prior mitted proof— upon sufficient except hereinbefore the conclusions Apart from as evidence defined expressed, two alternative reasons a beyond fact reasonable a trier of vince noted, previously result. As this court’s every element of the existence doubt post I infringe- Murphy’s Article the offense. in in this habe- placed issue ment claim 315-16, Virginia, Jackson charge that the proceeding by his corpus as (1979); L.Ed.2d refused to instruct Winship, trial court see In re U.S. the offense contrary convicted (1970). A he could not be 25 L.Ed.2d language Harlan’s charged solely Justice interpretation Hopt logic and reason. offend alleged accomplice would Critten- in testimony of requested denied the court den. The trial concludes

Accordingly, this court convicted.5 charge petitioner did not disad- abrogation of RCr specifically distin- Supreme distinguish Court Hopt from attempt tо 4. Petitioner’s Kring, Kring. In guished its decision persuasive not since case at bar is clause of the ex found violative Supreme Court recent with more inconsistent on provision a conviction of a subject on the Court decisions degree mur- offense second a lesser included exception prohibition. The vacated, acquittal der, operated although as an clause applicability of the ex murder. greater of first crime through Su- certainly modern been carried later, explained year the Court Hopt, law, see, decided e.g., v. Gra- preme Weaver Court case depriva- presented with similar that it was ham, n. 29 n. right” been at issue "substantial Florida, tion of a Dobbert v. 67 L.Ed.2d Hopt, 110 U.S. at Kring. L.Ed.2d sum, Hopt Court’s rationale 209-10. disposition Indeed, as the pro- with later not at odds are noted, phrase ex the Latin Dobbert nouncements. by precise given substance has been delimitation, of case an accretion but instead directly has not 292, Although Commonwealth Dobbert, U.S. at 97 S.Ct. law. 432 immediately im- circumstances right” a addressed “vested a focus on whether While for re- reason pacting upon the trial court’s proce- implicated by an otherwise is defendant instruction, appears jury fusing requested inappropriate for ex change in law dural subject a matter ‍‌‌​‌‌​​‌​‌​‌‌‌‌‌​‌​‌‌​​‌​​​‌‌​​​‌‌​​​​‌‌‌‌‌‌‌‌​​‍of record that applied criminal purposes to a for the 13, counsel discussion between defendant, Weaver, 101 considerable U.S. at 29 450 n. see initially counsel Defense 13, parties the court. proper test neverthe- n. S.Ct. at 964-65 relationship a existence of such right" questioned the if a “substantial less seeks determine an there [was] "... the court change, and advised see been affected has or not as whether 12, in this case issue Weaver, n. raised 101 S.Ct. at 964 at 29 n. 450 U.S. accessory and 293-94, principal and a an Dobbert, there is not 12; S.Ct. at 97 U.S. at 432 accessory.” 343, principal who is the Utah, 2298-99; iswho 170 U.S. 352- v. Thompson Moreover, appear that the (1898); it would 620, 623, 53, Tr. 637. 1061 42 L.Ed. a of such 221, (17 Otto) judge existence Missouri, trial reflected 231- Kring v. evening is dem- recess as relationship 452-53, (1883). over 32, 443, In 27 L.Ed. 506 when the remarks to counsel therefore, his onstrated noteworthy that the regard, it is 381, apparent colloquy (6th It is from the Cir.), between denied, cert. judge 837, the trial counsel and the reason (1984); 83 L.Ed.2d 74 give requested jury for his refusal Tennessee, (6th Combs v. 530 F.2d 695 disposition was his that no instruction ac- Cir.), denied, cert. complice relationship existed between Mur- 1731, 48 L.Ed.2d 198 evaluating phy light and Crittenden. the state trial court’s instructions to the requested ruling, jury court’s instruc- jury entirety in their and mindful of the given tion would not have been even if RCr absence of any language therein that repealed. Consequently, directly would or indirectly infer to jury implications no I ex Article could that the testimony of an accomplice stand give to the court’s have attached refusal to ing alone satisfied the reasonable doubt requested presuming instruction even standard, this court must determine if the accomplice relationship resolution of the failure of the state trial court to ultimately determined to be error. requested by instruction Murphy “infected Second, reading jury a instructions [Murphy’s] the accused’s trial to such a entirety in their disclosed that the instruc- degree as to constitute a clear violation of incorporated tions no direct or indirect lan- process.” due prevail, To petitioner “The guage convey which could be construed to must show more than that the instructions impression an that the sole undesirable, erroneous, are universally accomplice satisfied the reasonable doubt Marshall, cоndemned.” Wood v. 790 F.2d Murphy.6 standard to convict (6th Cir.1986). See Henderson v. petitioner suggested has not nor has Kibbe, argued he that the court so instructed the (1977); Brofford jury. Although the trial court refused the Marshall, (6th Cir.), 751 F.2d 856-57 instruction, requested accomplice it advised — denied, U.S. -, cert. jury, throughout general charge, its (1985); Parke, Whiteside v. consider all of the developed dur- (6th Cir.), denied, 705 F.2d cert. arriving “the whole case” in at its verdict. Arn, Thomas v. 704 F.2d 868- is, therefore, presented This court (6th with Cir.1983). a Murphy has not satisfied corpus appellate classical federal habeas that burden. conviction, review of state court wherein The state court jury instructed the petitioner charged the state court arriving verdict, at its it was to erroneously refusing with jury instruc- totality consider the of the evidence before assertedly tion mandated state law. It it, including the direct of Critten well-established instruction den as well as additional cirсumstantial tes pro- violated state law cannot timonial and other evidence which was de

vide a for federal corpus basis habeas veloped during the pre trial. It lief unless the erroneous must be instruction rises sumed that the to the level of a followed the court’s violation. Burke, Gryger arriving See instructions at its verdict of 1256, 1257-58, (1948); guilty beyond 92 L.Ed. 1683 a reasonable doubt. What is Marshall, (6th equally Wood v. 790 F.2d important to remember is that it is Cir.1986); Hubbard, Watters 725 F.2d not the prerogative function or of this addressing disposition, resumed. distinguishes 6. This omission the case at bar stated, given

the court “The Court has Civil, that con- Virgin from Government Islands v. thought evening siderable over the and even off (3d Cir.1979). Civil, F.2d 255 the was Counsel, the record did discuss it with Mr. Cur- explicitly charged testimony of an ac- counsel], legal tis simply [defendant’s and it’s complice by itself was sufficient to convict. Id. matter that the Court is of the belief that the Jury evidence which has been submitted to the is evidence sufficient to take the matter out of an situation." Tr. 637-38. provision in the federal Con- post as to the speculate or court to court facto I, majority, 10. The rejected or stitution. Article accepted was evidence which § it credibility basing opinion reading weight and/or its on a tendentious jury or the Utah, deliber- during its assigned Hopt to the evidence totality of say, (1884), Suffice L.Ed. 262 concludes that such ations. circum- direct and developed evidence both application of the retroactive incriminating including the direct stantial post prohi- 9.62 did violate facto as corroborated of Crittenden that, my contrary, It is on the bition. view incriminating tes- circumstantial additional clearly very opposite commands the sufficient was timonial and that, failing give Murphy result and rendered guilty verdict rule that was the benefit jury. This court concludes the time of the murder for in effect at give the refusal of the state trial court convicted, his which he was Murphy did not requested by instruction provision. in violation of the ex fundamentally unfair his trial render reaching reasons for its As alternative to a as to constitute infect his trial result, majority propositions on relies process. of due clear violation prior not relied in the reso- that were remain- examining petitioner’s Upon upon by case and not relied lutions of this cross-ap- assignments joined of error on Kentucky in this the Commonwealth they opinion is of the peal, this court I address these alternative court. will reasons articu- without merit for the are dealing the main propositions after with by the district court. lated majority relies. proposition which the of the district Accordingly, the decision moving into a substantive discus- Before peti- hereby court is REVERSED issue, I the ex believe sion of the district court REMANDED to tion is interesting well to outline would be Murphy’s peti- to DENY instructions with history of this case because this corpus relief. tion for habeas validity of on the will throw doubt alone opinion. majority Judge, BROWN, Senior Circuit BAILEY con- Murphy asserted this ex majority dissenting. I believe that Kentucky Supreme Court. in the tention in conflict with well-established opinion is ruling court, relying on That I re- doctrine and therefore Murphy, Murphy v. Common- against dissent. spectfully (one jus- wealth, (Ky.1983) 652 S.W.2d Murphy, convicted of appellee, recent dissenting) its own overruled tice At the Kentucky state court. murder contrary. Commonwealth to the decision killed, Kentucky victim was time the Brown, (Ky.1981). 619 S.W.2d 699 not be a defendant could was that law Kentucky latter by the uncorroborated convicted giving unanimously held that Court had Kentucky Rules of Crim- accomplice. repeal of RCr 9.62 to the retroactive effect 9.62).1 However, (RCr inal Procedure prohibi- the ex did indеed violate trial, statutory rule Murphy’s prior to in the Constitution. tion court, repealed, and the state Mur- denied Supreme Court repeal, While the application ‍‌‌​‌‌​​‌​‌​‌‌‌‌‌​‌​‌‌​​‌​​​‌‌​​​‌‌​​​​‌‌‌‌‌‌‌‌​​‍to giving retroactive certiorari, 465 U.S. Murphy’s phy’s ten- refused to (1984), 79 L.Ed.2d he could effect that dered instruction opinion dis- In his justices dissented. tes- three on not be convicted writ, denial of senting from the Murphy contends accomplice. an timony of and Powell Brennan Justices in violation that his conviction was (Ky.1983). statutory S.W.2d rule in been the 1. This had Commonwealth, since 1854.

curred, pointed Justice White out that charge;2 entitled to such a simply it Kentucky court Hopt while the had found contends that it was not a of violation dispositive Murphy’s claim, courts, ex clause apply to retroactively including Third Circuit in Government repeal provision as Civil, Virgin Islands F.2d 255 court did thereby deny Murphy to to (3d Cir.1979), had concluded re- the benefit of the provisiоn. quired opposite result. The issue in Hopt, majority opin- as the In the district court for the Western Dis states, ion was whether it was a violation Kentucky, judge, trict of then chief now of the provision to retro- judge, granted senior Charles M. Allen ha- active effect to allowing a statute convicted Murphy, concluding beas relief to that the felons to testify. At the time of the mur- provision by was violated der with which charged, was convict- giving in Murphy's retroactive effect case ed disqualified witnesses, felons were of RCr 9.62. Murphy v. but after prior the murder and Hopt’s Sowders, F.Supp. (W.D.Ky. trial, the Utah territorial statute had been 1985). Judge Allen, reading do, Hopt as I repealed, allowing convicted felons to testi- pointed also out that the Third Circuit fy. The Utah courts had allowed a convict- Civil reached the same conclusion. testify ed felon to against Hopt. All that At the time of the murder for which the Supreme say Court had to on this issue Murphy convicted, provided: was RCr 9.62 was: A conviction cannot be had the tes- Statutes simply enlarge the class timony unless corrobo- competent who rated tending other evidence to con- testify in criminal cases are not ex nect the defendant with commission prosecutions their offense; and the corroboration is prior crimes pas- committed to their merely sufficient if it shows sage; they do not criminality attach committed, offense was and the circum- previously act done and which was stances thereof. In the absence of cor- done; innocent when aggravate any nor required by roboration as the court committed; crime pro- theretofore nor jury shall instruct the to render a verdict greater vide a punishment therefor than acquittal. prescribed at the time of its commis- Murphy does not that he contend sion; nor they degree, do alter the entitled to ground a directed verdict on the measure, lessen the amount or that there was no corroboration of the ac- proof which was made to con- complice testimony. contend, He does viction when the crime was committed. however, that he charge, was entitled to a The crime for present which the defen- statutory provision, consistent with the indicted, punishment pre- dant was substance that he could not be convicted therefor, quantity scribed or the of an accom- plice; necessary to establish his say, contends that there all remained was a unaffected the sub- issue as to whether Crit- tenden, sequent admittedly Any statutory who statute. alter- was at the scene of murder, legal was an ation of the wheth- rules evidence which er his testimony was corroborated. would authorize The less (as Commonwealth proof, does not contend degree, amount or than not) that, could appli- quired committed, even RCr 9.62 were when offense was trial, cable to his Murphy would not have might, offense, in respect of that be ob- majority While the opinion charged states at 207 that with the same murder and tried with the "defense Murphy. characterized agree as an [Crittenden] was unable to as to the accomplice,” prosecution it was in fact the majority opinion of Crittenden. The so agrees characterized testimony corroborating Crittenden. It is true that Crit- Critten- separately, tenden was Maj. indicted “conflicting." op. supra but he was den was accomplice an uncorroborated testimony of inhibition the to noxious law. the of a matter as incredible But alterations laws. upon ex argument the goes, majority opinion’s nor punishment the do not increase which felon disqualification of the and the peal or of the offense of ingredients change the requiring corrobora- rule repeal of the the necessary to establish facts the ultimate the same accomplice effected tion nature the but, leaving untouched credibility impediment result, i.e., of “the degree or amount the crime and imposed upon a cer- legislatively conviction, only re- was which to essential proof removed.” had been witnesses com- class of tain the existing restrictions moves Maj. op. supra as at 208. of classes of certain petency of witnesses, to modes relate assume, majority opin- as the if Even we a said to have one can be which no only, in only policy reason assumes, that the ion State, upon which the right, and vested as a witness a felon disqualifying a statute at regulate may policy, public of grounds tеstimony was felon’s a that was mode the regulations of Such pleasure. matter of but as a incredible sidered guilt constituting facts the which (Chad- Evidence, Wigmore, § see ap- be made jury, can the before placed 1979) that the dis- (suggesting rev. bourn or trials there- prosecutions to plicable punish- the part of was also qualification date had, reference without after rule the reason for ment), certainly the charged. the offense of the commission of testi- accomplice of requiring corroboration the at was not for a conviction mony in- testimony is accomplice uncorroborated the repeal of me to appears It alleged An of law. matter a credible as that was rule Kentucky corroboration testify, and ordi- allowed accomplice is case the murder time of the effect at wheth- jury to determine the narily it is fоr the amount degree, or lessen did “alter accomplice anwas witness er the made measure, proof which or Moreover, and testimony is corroborated. the crime when to conviction the accom- effect of importantly, more 210. S.Ct. at at Id. committed.” is not rule plice of Moreover, or quantity “the rather but incredible testimony deemed affected guilt” establish proof to credible, not corrobo- not so it is repeal The Id. law. change in the reason- beyond a rated, as establish “authorize 9.62 did of rule, accomplice Thus doubt. able degree, than was or proof, in amount less di- specific requires applicable, when committed.” offense was when the required reasonable jury that rection did 210. The 590, 4 Id. at unless is not satisfied standard doubt or the amount ... “untouched not leave Ac- is corroborated. to conviction.” essential prоof degree of felon from disqualifying law cordingly, a Id. corrob- requiring a law testifying at all straightforward aHopt giving of Instead quite different are a conviction oration to avoid seeks opinion majority reading, the do has to with one The effect. in their making an of plain meaning the other has testify and qualification the issue between comparison inaccurate necessary to amount with do here. involved the issue there involved doubt standard. satisfy reasonable statute states that opinion majority majority way in which The other testify- felons disqualified which direction the clear to avoid opinion seeks in RCr rule embodied as “the phrases interpret such is to corroboration required measure or the amount or ... degree, es- accomplished for a conviction proof” degree of or quantity “the or proof” one result sentially the same to refеr degree” in amount “proof, testimony incredible a felon’s deemed by which “to the burden deemed the other law and matter government prove must its case.” At generally support the proposition that ret words, In other argues majority, roactive application of a repeal of a rule Hopt opinion that, means in the present requiring corroboration of accomplice testi context, retroactive of the re- mony prohibited post ex facto peal of RCr 9.62 would violate the post ex clause. The majority is point correct to out provision only if altered, it for a that in facto Hopt, as in cases, later the Court conviction, the rule requiring proof beyond opined has that changes in law that “relat a reasonable doubt. The answer to this ed to modes of only” do not run argument First, is twofold. this is not afoul of post the еx clause when facto what says. It seems to me that if applied retroactively to a criminal defend Hopt meant, by the use of these phrases, ant. Hopt, 110 U.S. at 4 S.Ct. at 210. only refer to the burden of proving guilt Graham, Weaver v. U.S. 29 n. beyond doubt, a reasonable this would have 964 n. Second, if, been stated. at the time of the (1981) (no post ex violation “if the facto now, decision in Hopt or the law were change effected is merely procedural”); altered to a conviction allow bn less Gibson v. Mississippi, 565, 590, 16 than beyond doubt, a reasonable 904, 910, (1896) (no L.Ed. 1075 would have been then and would be now violation if provisions “the in question re invalid without consideration of post the ex lated simply procedure”). However, the clause. In In re Winship, 397 U.S. facto Court long ago stated emphatically that “it (1970), is obvious that a law which is proce one of holding that proof beyond a reasonablе may dure be obnoxious as an [also] ex is, courts, doubt in state necessary to satis- law.” Kring v. Missouri, 107 U.S. facto fy process the due clause of the fourteenth (17 Otto) 221, 232, 27 L.Ed. 506 amendment, the Court said: (1883). Addressing precisely issue, this Expressions in many opinions of this in Kring Court plainly decided Court indicate that it long has as- new law that is merely procedural will be sumed that proof of a charge criminal insulated from post ex challenge: facto beyond a reasonable doubt is constitu- right [C]an substantial which the law tionally required. gave the defendant at the time to which Id. at 90 S.Ct. at 1071. his relates, be taken away him The very first case cited Court in ex legislation, because, in facto support of proposition is Miles v. Unit- use of a phase, modern it is called a States, (13 ed Otto) 304, procedure? L.Ed. law of We think it cannot. (1881), which was a appeal criminal Id. that came to the Court from the Contrary to the majority's аssertion, Su Utah territorial court approximately two preme Court cases subsequent to Hopt years Hopt. before have established that the state violates a Accordingly, if the Court Hopt had “substantial right” of a criminal defendant been referring to the burden of proving applies when to him post a law guilt beyond doubt, a reasonable the ex that is “more onerous ... than the law prohibition would have been ir- effect on the date of the offense.” Weaver relevant. Graham, 30, 101 965; S.Ct. at Supreme Court decisions before and af- Florida, Dobbert v. 282, 294, ter Hopt do not lead to a different result 2290, 2298-99, (1977) than that which this dissent supports. (“It is axiomatic that for a law to be ex I agree While with the Third in post Circuit it must be more onerous than Civil that the concept “has prior law.”); Ohio, Beazell not been [by defined the Supreme 167, 171, Court] (1925) L.Ed. 216 with any precision,” 258,1 591 F.2d at also (legislation violates clаuse op “harsh or agree with it that the Court’s pressive decisions applied plaintiffs in er- ground of the ma- alternative Medley, 134 parte ror”). Ex See also reversing grant of habeas jority L.Ed. 835 judge state trial did relief is that the if it “al- clause violates (1890) (legislation charge jury affirmatively accused to situation ters the by the uncorroborated could be convicted Missouri, 107 disadvantage”); Kring (This appears to testimony of Crittenden. (same). The 235, 2 S.Ct. at U.S. at argument.)3 harmless error a kind of noted that: expressly be, certainly intent but it was This of an affirma- presence or absence [t]he court, in of its denial view state ... right is not relevant tive, enforceable request to Murphy’s prohibition, jury that charge, convey the idea to the of ... imposition law[a forbids enough to testimony could be Crittenden’s the law in effect than more onerous is] charge was sub- Murphy, convict offense. date of on the impor- interpretation. More ject to such respect to the pointed out with tantly, as 30-31, 101 Graham, Weaver reversal, basis other alternative con- Court decided earlier, opinion majority As stated and, consequently, we stitutional issue alternative, argu- fall back two presents Hockenbury, 620 F.2d at it. must decide grant of habeas ments for reversal 115. relief. dissent, I set out For the reasons that, point of argument grant The first in the the district court affirm would Mur- fact, refused trial court relief. of habeas charge requiring corrobora- phy’s proposed there was it determined

tion because between

no relation majority argues the

and Crittenden. have instruction would

opinion, the been if RCr 9.62 given even Hill, Hill, Wayne HILL, there is no Connie therefore David repealed and Hill, Hazel Hill and Agnes Leonard response, this court. issue before Plaintiffs-Appellants, Hill, transcript as does not read the I do apparently the Com- opinion, and

majority The Common- either. does not monwealth CORPORATION, A.O. Smith A.O. SMITH in the this contention not made wealth Products, Inc., Agristor Harvestore Court, inor the federal Kentucky Supreme Defendants-Appel Corporation, Credit fact In view of the court or here. district lees, Murphy were Crittenden that both murder, alleged being charged with this Corporation, Agristor Credit murder, it is present at were that both ‍‌‌​‌‌​​‌​‌​‌‌‌‌‌​‌​‌‌​​‌​​​‌‌​​​‌‌​​​​‌‌‌‌‌‌‌‌​​‍Counter-Plaintiff. it could make the to see how difficult No. 85-5902. refuse trial court did Even tention. aof instruction on the basis give the Appeals, States Court was not an accom- finding Crittenden Circuit. Sixth Kentucky Supreme Court plice, since Aug. Argued 1986. possible alternative on this wise relied no Sept. 1986. Decided for affirmance of ground state law necessity conviction, address we would Hockenbury issue.

the constitutional Cir.1980). (6th Sowders, 620 F.2d Commonwealth relief, ty, been asserted has not denying like the ground for habeas This or here. courts majori- in the other ground asserted alternative

Case Details

Case Name: Gregory Arnold Murphy, Cross-Appellant v. Dewey Sowders, Superintendent, Cross-Appellee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 3, 1986

Citation: 801 F.2d 205

Docket Number: 85-5337, 85-5338

Court Abbreviation: 6th Cir.