James A. Hayton v. Charles Egeler, Warden State Prison of Southern Michigan
555 F.2d 599
6th Cir.
1977
Check Treatment

*1 placed approximate- under surveillance. At m., States,

ly individuals were seen p. Spinelli 10:00 both and v. United Hopkins Akron in the direction of leaving (1969). Airport. the infor- agree Appellant tip mant’s alone was insufficient standing the Magoch of Agent Frank J. Special the probable Agui- to establish cause under sta- Administration was Drug Enforcement police the lar-Spinelli Although standards. apprised He been airport. tioned reliable, the of the in- informant was crux during the uncovered information conveyed police came formation she Agent Carla Special investigation. Akron There is party, from a third Laurie Miller. that David Magoch Agent Hari informed reliability Miller’s or no indication Laurie air- toward the proceeding Feinman was under which she came of the circumstances res- flight checked the Magoch port. Agent However, deficiencies by information. name Appellant’s computer ervation through be cured tip may in an informant’s p. 10:45 approximately At success. without law enforce- independent investigation by Appellant observed m., Agent Magoch officers which corroborates infor- He ob- ment claim area. baggage airport Draper tip. the claim area mation contained in standing Appellant served re- suit case United minutes for fifteen Here, baggage Draper, carousel. L.Ed.2d 327

mained off the suitcase took his were verified point, Appellant tip details of the informant’s Fein- replaced it. When investigation and then independent carousel officers’ baggage Ramage entered man and personal and observations immediately ap- claim area arresting agent. the arrest was Since past instead walked Appellant but proach cause, the search of upon probable based met, about, the three looking him. After incident to the arrest was valid. suitcase conversation. held brief shook hands and Kaye, States two and returned left the other Ramage 1974). properly The District Court de- left terminal later. Feinman short time motion suppression nied and convic- to fol- Appellant Ramage motioned hereby affirmed. tion Agent Magoch stopped point, low. At and asked identification Appellant agent gave Appellant ticket.

an airline did that he license but claimed

his driver’s Magoch testified Agent a ticket.

not have Feinman driv- heard then saw and that he HAYTON, James A. Petitioner-Appellant, high rate lot at through parking ing Agent Hari and missing speed narrowly Magoch Agent placed officers. EGELER, Charles Warden State Prison asked for under arrest and Southern gave Agent suitcase. key to the Respondent-Appellee. agent opening Magoch as the key No. his arm 76-2020. grabbed case, Appellant Magoch Agent a warrant. asked for United States Court of Appeals, a brown and discovered the suitcase opened Sixth Circuit. heroin, rolled substance, later to be proven sock. up Argued Dec. 1976. Decided May Appellant contends that the facts known Magoch at the time of the arrest Agent Rehearing and En Banc Rehearing did cause. He sub- probable not amount to July Denied mits provided by the information satisfy informant did not the two- unnamed Texas, Aguilar test forth in

pronged set *2 Kelley, Atty. Michigan,

Frank J. Gen. of Derengoski, Casey, Robert A. Thomas L. Mich., for Lansing, respondent-appellee. PHILLIPS, Judge, Before Chief and ED- PECK, Judges. Circuit WARDS and PECK, Judge, the opin- Circuit delivered Court, PHILLIPS, ion of the in which Chief EDWARDS, Judge, joined. Judge, Circuit 605) a separate dissenting filed opin- (p. ion. PECK, Judge.

JOHN W. Circuit Appellant jury of was convicted degree Livingston murder County, Michigan, 26, 1968, Circuit Court on June and was sentenced serve a term of life imprisonment. exhausting After his state remedies, appellant petition filed a for writ corpus habeas the district court. appointed, Counsel was an amended peti- filed, tion was and a held. hearing was district then granted court appellee’s mo- dismiss, tion to denied the petition, and dismissed the appeal- action. has ed the court’s judgment ground that his Fourteenth Amendment rights were the state court trial when he regarding was cross-examined pretrial custody, while in about his alibi defense and when the prosecutor en- gaged improper conduct. allegedly affirm judgment. the district court’s crime for which has been imprisoned occurred at approximately 8:00 p. January m. on men Two entered pharmacy Hamburg, where owner, Reck, Sr., George his twenty Jr., year son, old were at approached work. The two men the pre- counter, scription where the Recks were located, and of the men one asked for stom- Street, William T. Legal Services of East- ach medication. The father left coun- ern Michigan, Saginaw, Mich. (Court-ap- medication, ter with that toman find the CJA), pointed man, Hayton, James Edward Pris- while the other court as oner, Israel, M. Stuart Ohio Universi- close to the stayed son. ty, College Programs, Law Clinical Co- then the son told lumbus, Ohio, for petitioner-appellant. make because his partner noise two sisters testified that pellant’s forced The assailants the owner. January pre- night down behind to lie face the Recks then shot them in the children the home with his three scription counter killed, and the son corroborated The father sisters. back. Coleman also seriously testimony. wounded. Co-defendant *3 an alibi defense. presented wounded, the was able son Although of the front stand, towards the go get up was on the the appellant When as saw the man identified where he store him as the cross-examined prosecutor the front door and running out appellant remembered where he appellant time when colored already light in a the other prose- of the murder. The night was on the into wagon. getting station While Rambler single as to whether question asked a cutor car, appellant saw the man identified the the details of his appellant had disclosed Reck, observing Jr. George wounded the charge officer alibi defense so, gun, he out of carrying got him and investigation when officer and back into store. and started the car car together ridden in a dur- appellant had Reck, rear inside the store Jr. ran to the pre-trial period appellant’s custo- ing and saw There he turned the back door. not. that he did dy. Appellant said appellant pointing the man During the course of the co-defend- however, son, firing. The at him and characterized the counsel ant Coleman’s out back door and good escape made pharmacy “bungled” at the robbery nearby restaurant. help from obtained point in turn made job. The in the fled the scene The two assailants “bungler.” appellant was in the were taken About Rambler. $100 appellant guilty jury The found robbery. Co-defendant Coleman degree murder. investigated State Police Michigan acquitted. was course of robbery-murder. Over the months, Reck, George Jr. the next several II 4,000 photographs

was shown more than in an effort to least 20 individuals and at held that there The district court August, the two assailants. identify committed at no constitutional error an of men involved in photographs the evi admitting court trial in the state Southfield, robbery unsuccessful armed tell the Michi appellant dence Reck, Jr. Includ- were shown Michigan, his alibi before trial. State Police about gan robbery in that apprehended ed those court, the appro According to photo- From attempt appellant. was the post-ar in cases approach apply priate Reck, ap- immediately Jr. identified graph, inquiry to “make an each rest silence was of the assailants. The same pellant as one in fact inconsist the silence is case whether people was held day, line-up eight then bal trial ent with the jail, where County, the Oakland of the evidence on probative value ance held for the appellant being Southfield potential its credibility against the issue Reck, Jr. attempt. line-up, robbery Hayton Egeler, prejudicial effect.” again (E.D.Mich.1975). F.Supp. an war- arrest Subsequently, assailants. that the silence district court determined rant was executed be itself case would Hamburg murder. concluded that the impeaching but clearly admissible because one Paul evidence was jointly was tried with alibi was incon silence about Coleman for the murder Willard talked the fact Hamburg sistent pharmacy. Michigan with the State freely at the time identifications of made in-court supra, 405 Egeler, Hayton assailants. Police. pellant and Coleman as the two presented Ap- F.Supp. an defense. 1149-50. the Due Process accept admitting ings, cannot this basis for Clause the evidence of silence. Fourteenth Amendment.” appel- of fact finding district court’s at 2245. This decision was based freely to Michigan talked State alibi, as to ground an clearly Police was erroneous. The record ambigu- time of “insolubly arrest was any support finding. does not offer for that required because of what the is ous State transcript The state court trial only shows advise the arrested.” 426 U.S. at references, made in passing by appel- at 2244. The Court deter- counsel, suggest could even warning, required mined that implicit talking to the police. Arizona, Miranda importantly, all in nothing More that a the record about substance of con- person has a to remain silent Michigan between the versation Po- interrogation custodial was the assurance *4 appellant, lice and and hence not there is carry that such silence penalty. would no sufficient information to conclude that Ohio, Doyle however, supra, v. does not said pellant anything which would be incon- mandate reversal of the district court.1 concerning sistent with silence an alibi. Supreme ques- The Court did not reach the Appellant contends that his constitutional case, present tion before this Court in the process of law and against namely, use, for impeachment whether the self-incrimination were violated when the during of purposes, petitioner’s a silence cross-examined pretrial post-arrest period and violated due he Michigan whether had told the process guarantees. Supreme The Court Police about his alibi Appel- before trial. explicitly Doyle, stated in supra, 426 U.S. at especially Doyle relies v. and Ohio 616, 6, 6, n. 96 n. it S.Ct. 2244 that was Ohio, 610, 2240, Wood 426 96 49 U.S. S.Ct. dealing that question “dif- because L.Ed.2d 91 Minor v. ferent considerations” were involved than cert, denied, 904, 1 Cir. (6th 427 U.S. in Doyle those situation. 3189, 96 49 L.Ed.2d 1198 (1976), S.Ct. and Brinson, United States v. 411 F.2d 1057 Moreover, Doyle does not stand for the 1969), for authority the prosecu- proposition consti- exercise impeach tor’s effort to tes- appellant’s alibi privilege tutional to remain silent never can timony by inquiring about his discrediting be used for Doyle a witness.2 was constitutionally impermissible. silence States, did not overrule Raffel v. United 566, 494, 46 271 U.S. S.Ct. L.Ed. 1054 Supreme Doyle Ohio, The Court in (1926), impeachment which allowed supra, reversed state narcotics convic- basis of defendant’s exercise of a constitu- defendants, tions who at trial presented tional to remain silent. The Supreme defenses about which in Hale, were silent Court United time of The States v. 422 U.S. arrest. 171, 175, 2136, 2133, Court held the use impeachment “that for L.Ed.2d 99 purposes petitioners’ at the time discussed the in situation Raffel in of arrest and after receiving Miranda distinguishing warn- it. Doyle Supreme v. Ohio position 1. The Douglas Court in 2. The of Justice in Ohio, Hale, Wood 171, 182, States v. 96 S.Ct. U.S. (1976), recognized (1975) J., n. L.Ed.2d 91 (Douglas, that its concur against use, impeachment purposes, ring), rule for and in Grunewald v. United (1957) defendant’s silence at time of arrest does L.Ed. 931 apply (Douglas, J., when the concurring), silence is to be used for rebut- purposes, tal special justify such as when a defendant “no circumstances that would presents an alibi and to have privilege claims told the use a constitutional to discredit or upon the same version Supreme The arrest. convict who it.” asserts case, present however, does not Doyle a situ- in those two cases and ation which adopt ground silence was used that broad its decision. purposes. rebuttal California, Chapman v. doubt. There, required trial a second to reach L.Ed.2d 705 jury failed when the first his privilege testimony In reliance about verdict. is whether issue self-incrimination, the compulsory against jury have influenced silence could testify his first declined conviction, accused Chapman contributed trial, however, he At second trial. 23-24, California, supra, 386 U.S. an to refute effort took the stand so that “absent cross-examination government witness. testimony of ., have juror could entertained ‘no admitted that objection, Raffel Over [appel petitioner’s doubt’ as to reasonable the face of the silent had remained Black, supra, 527 guilt.” Minor v. lant’s] proceeding. earlier testimony at the same are to resolve that at 5. We unable the Court con- these circumstances Under of appellant. favor issue silence cluded that Raffel’s Minor, First, unlike situation with his was inconsistent identification second, his silence could and that at the Reck, Jr. guilty party impeach credibility be used trial, Reck, strong. Before indisputably representations. later immediately upon had identified not, however, Supreme Court has being picture. Reck, Jr. identi- shown oppor when it has had the Raffel extended appellant again line-up. fied at a Hale, United States tunity. Jr, despite *5 99, the 171, 95 45 L.Ed.2d U.S. S.Ct. cross-examination, did vigorous defense not prejudicial Court concluded Reck, testimony. Moreover, alter Jr. permit court to cross-ex error of excellent opportunities had number concerning of the defendant amination 7,1967, night to observe January immediately interrogation during silence appellant. as It was he identified defendant was after arrest and had, appellant as who at to a new trial in the exercise entitled good light appel- and in ordered range close over the low supervisory authority Court’s make noise because his to Also, exercise er federal courts. It was gun had a on his father. partner powers, Court Grunewald supervisory as who fired a man identified 353 shot, him, at good after Jr. had a look error found reversible L.Ed.2d escaped through the latter back before been cross-ex the defendant had because store. door declining to at trial about answer amined to questions posed him Second, series which as- hearing preceding trial. grand jury single is contained in a signs as harmful answer: question and Supreme of definitive Court In absence question Q. you be- several occasions guidance on constitutional On assume, us, ride car purposes fore we will chance to least with error was that constitutional opinion, Demsky [Michigan this Police Mr. Black, supra, committed. Minor v. detective], you? didn’t prosecutor’s (cross-examination sir, Yes, I A. did. dealing with defendant’s arguments transported court and Q. you He to trial, alibi about an between arrest like that? things case), in that and Unit- constitutional error A. Yes. Brinson, 411 F.2d 1057 supra, ed States had been you ever tell him Q. You (in appeal, cross-examina- direct criminal 7th, January your sister dealing argument prosecutorial tion and alleged this offense time ex- pretrial silence about with defendant’s happened? constitutional error in culpatory story so, (Emphasis sup- no. think conclude, however, A. don’t the er- case). We plied.) beyond a reasonable ror was harmless (State Trial Transcript p. 622). DeChristoforo, Court ror. Donnelly Un- counterpart like his Minor v. su- 1, the

pra, (6th 527 F.2d here Egeler, did not Burks v. 512 F.2d 221 Cir. pursue questioning, 1975); this line did not refer Buchkoe, Gemmel F.2d 338 (6th to it in any question, 1966). thereafter other or Donnelly, Cir. Under a determi- argument. mention it in his final question ef- nation on the of fundamental un- fect assign which would fairness is be viewing made after single, casual reference is almost difficult to totality of the circumstances. This test accept, particularly in view of the fact that “may serve to narrow the construction of lengthy lasting this was a ten days. federal to some clause de- gree considering prosecutorial abuse in Third, guilty the difference in the verdict argument,” Whealon, Sheely v. as and the verdict guilty findings to co-defendant Coleman is understandable lesser trial may suggest errors correction in view of the evidence and further sup- judicial the state and federal systems, with- port for the conclusion that this isolated rising out the level of constitutional dep- instance appel- of cross-examination Donnelly DeChristoforo, rivations. su- silence was harmless error. 1868; pra, Burks v. indicated, Reck, good As opportu- had a Egeler, F.2d at 226. Similarly, the man nity appel- observe “[although involving night contrast, lant the the murder. matters the con- duct glanced momentarily of the trial can only the man rise level of error, identified as Coleman that man constitutional it is not often when store, A reading walked into the he had do so. careful when father, transcript on his entire trial in this per- when he was in the car case escaping suades the that the trial was from scene. A second element fairly petitioner conducted and split competent- verdict was ly represented. Further, testimony given prosecu- corroborated by his conduct, sisters, although vigorous, whereas co-defendant tion’s Coleman’sali- was not *6 given Hayton Egeler, supra, bi was unfair.” v. supported by testimony by persons F.Supp. not shown at 1152. by the record to have in Finally, interest him. the evidence Using test, the Donnelly we are in produced at trial showed that had agreement district court’s conclu been in trouble with the other law occa- sion that deprived was not of a sions, including an robbery armed attempt Moreover, fair fundamentally trial. Don the year of the murder. Co-defendant nelly on its facts appears indistinguishable Coleman shown to have been in- from the present case. In Donnelly, the volved in crime at any other time. allegations prosecutorial of misconduct in volved the expression personal opinion of a Ill by the prosecutor as to the defendant’s court also held that appel- guilt in to response personalized argu rights constitutional were not violat- by ment an ambiguous defense counsel and ed by prosecutorial claimed instances of by prosecutor indicating reference On appeal, misconduct. appellant contends had unsuccessfully sought defendant to his to due of law and a plead a lesser guilty to offense. The Su fair trial the prosecutor when preme in Donnelly ruled such “bungler” referred to appellant as and in prosecutorial conduct did result in fun his argument expressed personal final his unfairness, damental since a conclusion of belief in guilt. fundamental unfairness would have left The issue before us is whether the prose- meaningless “virtually the distinction be cutor’s comments resulted in fundamental ordinary tween trial error a prosecutor of unfairness, not whether there was trial egregious er- and that of misconduct sort held rested appellant’s guilt solely Proof of Pate, in Miller 386 U.S. [v. surviving testimony of the victim. Brady Mary- upon the (1967),] L.Ed.2d [v. he to land, opportunity I had recognize 373 U.S. While a deni- killers and his identifi (1963)], ... amount observe the Donnelly prob process.” still al of constitutional cation 647-48, DeChristoforo, 416 U.S. total v. this was identification lem crime. violent stranger midst identification, despite complete good Such type involves the same present case witness, be mistaken. can faith misconduct. allegations prosecutorial Wade, 388 United States expression of a Donnelly, Like there was an Webb 18 L.Ed.2d as to opinion prosecutor personal Havener, response personal- to a guilt defendant’s Russell, 532 F.2d 1977); United States counsel. Like ized defense argument Borchard, 1976); E. (6th Cir. ref- who made prosecutor Donnelly, Convicting The Innocent plea-bar- effort erence to an unsuccessful gain imply in order defendant join holding impossible I find it crime, the that case connected prosecutor’s questioning made refer- present case his tell the about failure to “bungler,” which ence to constitutional (when clear could, necessarily, imply does not silent) represented error remain harmless appellant was connected to mishandled doubt. beyond reasonable in murder. As Donnel- robbery resulting unfairness in ly, there was no fundamental case. is af- judgment of the district court

firmed, appellant’s petition writ corpus

habeas is denied. America, UNITED STATES EDWARDS, Judge, dissenting. Circuit Plaintiff-Appellee, agree majority opinion I with the in all respects except pros- as to effect cross-examining appellant con- ecutor’s CASTENADA, Frank Olmos silence. As to it cerning Defendant-Appellant. Ohio, Doyle feel that No. 76-1328. Minor 49 L.Ed.2d *7 cert, of Appeals, States Court denied, 427 Seventh Circuit. us to hold require Argued Dec. 1976. (rather assume) appellant’s con- than Decided March 1977.*

stitutional were abused. particularly was a brutal Although this Rehearing on Denial As Amended murder, concerning it and most of the facts May undisputed, identity of the killers sharp co-defendants dispute. Both absolutely denied their involvement jury acquit-

presented alibi witnesses. The convicting

ted the co-defendant while

pellant.

* ing, panel subsequently by unreport- to correct appeal originally decided This decided opinion. as an pursuant and issue the decision to Rule the order ed order on March rehearing petition petition denied. consideration of the for rehear- On