James J. Corbett v. Donald E. Bordenkircher, Superintendent

CORBETT, J. James

Petitioner-Appellant, BORDENKIRCHER, Superin-

Donald E.

tendent, Respondent-Appellee.

No. 78-3672. Appeals, States Court

Sixth Circuit.

Argued Oct. 1979.

Decided Feb. 1980. Miller).

murdеrer of count Corbett with charged receiving property was stolen shortly after he from Miller was murderéd. charged and Finally, Jenkins Corbett were being 9 with in counts 8 and habitual crimi- nals. court The state trial directed a verdict for Radigan, M. William Asst. Public Defend- except all counts Corbett as to the habitual Frankfort,

er, Ky., petitioner-appellant. and (burglary criminal count count 2 of Corbett, Jay pro James se. Mine), Ratiki Coal storehouse at as to both stated, which, Corbett was convicted. Gen., Stephens, Atty. Robert F. Robert Gen., Frankfort, Hensley, Atty. W. Asst. place perspective, To case in it is respondent-appellee. Ky., for necessary refer to a related habeas case Jenkins prosecuted by but which involved WEICK, KEITH BAILEY Before and the of Jenkins in conviction another crimi- BROWN, Judges. Circuit prosecution robbery nal for the murder and of Miller. That criminal case was tried in BROWN, Judge. BAILEY County by the circuit court Henderson action, petitioner, habeas James J. Judge, the and the same trial occurred Corbett, was convicted of and who shortly before Corbett’s trial with Jenkins being an habitual offender gave in the case that rise to the habeas in court of a life 1975in the circuit us. Anthony action now before was sentence Svara County, Kentucky, contends Henderson along robbery indicted with Jenkins for the penalty Jenkins, in his state trial and in the and murder of Miller. deprived was consti- imposed he of federal was of murder rob- convicted and armed rights. He his state bery, tutional has exhausted was convicted of Svara murder. appeal. direct also con- Jenkins was relief on remedy аppeal, Corbett denied direct the federal Honor- and after of habeas judge, tends that district denial relief in federal Gordon, court, prosecuted appeal F. and de- district an to this able James who heard (Jenkins been petition, that has decided. nied his habeas further erred in Bordenkircher, (1979)). 611 F.2d 162 dismissing petition without eviden- Svara an conviction, appeal direct withdrew his of his hеaring reviewing tiary and without the and he witness for the in was a transcript the state trial. We conclude subsequent the trial of Corbett and Jenkins. is not entitled to relief Corbett habeas or to a remand to the district court Judge Recusal of the affirm the district therefore decision of the court, his trial Prior to in state Cor court. moved, supported affidavit, bett to have indicted, along was Charles with judge recuse himself the because Jenkins, in a nine Edward count indictment. judge had, county attorney in charged they 2 and 3 were with and as a attorney, prose commonwealth sporting goods of Net- burglary of store instances, cuted him for crimes in four Greenwell, burglary tie of a storehouse at first in 1962 the last in one of Coal Mine and upon the Ratiki was which convictions relied as a basis In count dwelling being housе of Malcolm Neal. with charging an habitual charged with they conspiracy were offender. The contention was and is by concealing required judge recusal because the was justice obstruct evidence was against or likely prejudiced of William Curtis Miller. to be murder that, event, charged any judge’s prior prose Jenkins alone was with in count murder, gives an appearance cutiоn of him stealing Miller’s truck after charged impartial. no inability to be There was and in 6 Corbett alone count (i. judge prej- e. a assisting allegation actually a felon harboring with federal); Moreover, rather the issue is whether Corbett. udiced proc- to Corbett due failure to sever denied by memorandum supported petition habeas Fourteenth Amend- ess of law under the allegation was made no Although many there are federal preju- ment. actually demonstrated applying decisions the sever- district court against Corbett. dice in the Federal Rules of ance rules contained context, then, raised question are although Procedure and there Criminal apply per a se rule and we must is whether decisions, appeal many federal courts judge has a trial simply bеcause hold interpreting exercising supervisory powers, per- in the defendant prosecuted rules, are few federal de- same there those official, public forming duty dealing directly with the issue of due cisions judge recuse him- requires that the process for applied to severance of counts process as quickly answered question can be self. This Amendment in the trial under the Fifth because in is concerned far as so or under the Fourteenth federal courts Bordenkircher, supra, which v. Jenkins in the state courts. We there- Amendment by claim made Jenkins the same dealt with helpful, initially, it would be fore believe robbery he also his murder at problem examine how the has been dealt prosecuted by the past been having in the question with other than as a constitutional adоpt refused to judge, this court trial same necessity implicitly courts that of but hold Accordingly, rule. we se such recognized that due sets the outer process by not denied due that Corbett joinder perimeters permissible of counts trial to recuse the severance for trial. himself. The issue raised a motion to sever Severance counts for trial is akin to that dealt with court, Corbett moved In thе state the rules of evidence that have to do for trial of the a severance (See: proof with of other crimes. United 1, 2, 3) (counts from the other counts Jamar, 1103, (4th v. 561 F.2d States concealing with evi having to do counts 1977)). prejudicial Because of the ef- Cir. Miller, harboring a of the murder of dence proof fect to a defendant of of other crimes property stolen from reсeiving felon (see below), generally ‍‌​​​‌‌​‌‌​‌​‌‌‌‌​‌​‌‌​​‌‌​‌‌‌‌‌‌‌‌​​​​​​​​‌‌​​​‌‍such is not allowed that, Miller, if all the counts motive, may oppor- allowed to show but be together, his trial would not be were tried intent, preparation, plan, knowledge, tunity, therefore he would be denied due fair and accident. identity or absence of mistake or He contended that process. Evidence, 404(b). Federal Rules of Rule involved faсts that were unrelated counts We this out to show that under such point Miller, surrounding the murder of the facts Rules, approved Federal which have been that, insisting after points out Court, while the evidence denied, prosecution applied be severance generally proscribed, of other crimes is approval of the trial court for and rule. many exceptions there are to the testify burgla about the to have Svara first stand, counts, then ry leave the witness possible prejudice The inherent to a de- testify later as to counts related to the joinder well fendant of of counts for trial is Miller. As before all the murder of Foutz, described United States together, the trial court were tried 1976) (at 736): (4th as follows F.2d 733 Cir. except as to all counts directed a verdict case, initially thе instant the Ratiki coal mine storehouse burglary of only permissible because the offenses offender, and the convict and habitual were of or similar character. the same as to these counts. ed Corbett joined two or more offenses are When solely theory, out that the issue trial on this three sources It should be course, may justi possible is not whether which before this fy granting to sever these counts for trial of a severance under the failure (state (1) procedure jury may was a violation a rule of Rule 14: confuse and Isaacs, (7th and convict the States v. cumulate denied, 1974), when Cir. cert. defendant of one or both crimes (1974). 41 L.Ed.2d 1146 convict him of either if it could would not exercise of this discretion will be over keep properly segregated;1 the evidence only аffecting turned for clear abuse sub (2) may confounded in the defendant rights stantial of the accused. Cataneo v. defenses, as where he desires presenting States, (4th F.2d Cir. privilege to assert his self-incrim 1948). respect with to one crime but not ination other; (3) jury may conclude In Alvarez v. Wainwright, 607 F.2d 683 crime guilty that the defendant of one (5th Cir. per curiam, guilty and then find him of the other that a failure to sever counts in a Flоrida disposition. because of his criminal state trial could not be a denial of due (Footnotes omitted) process unless, at a minimum, such failure spite danger joinder of this inherent would constitute “prejudice sufficient to trial, of counts for the Federal Rules of warrant relief under F.R.Cr.P. 14 Procedure, 8(a), Rule broadly pro- Criminal As joinder vides for as follows: is out in Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 Rule 8 (D.C.Cir.1964), one of the risks to a defend- JOINDER OF AND OFFENSES OF ant in trying separate criminal charges in a DEFENDANTS single trial, is, that the risk of confusing or (a) Joinder of Offenses. Two or more cumulating is where, reduced may offenses charged be in the same here, as the crimes simple and distinct. indictment or separate information in a The (118 court said U.S.App.D.C. at count for each offense if the offenses 91): F.2d at charged, whether felonies or misdemean- courts, federal including own, our both, ors or are of the same or similar have, however, found prejudicial no ef character or are based on the same act or fect joinder from when the evidence of transaction or on two or more acts or each crime is simple distinct, even together transactions connected or consti- though such might evidence nоt have tuting parts of a common scheme or been admissible in separate trials under ‍‌​​​‌‌​‌‌​‌​‌‌‌‌​‌​‌‌​​‌‌​‌‌‌‌‌‌‌‌​​​​​​​​‌‌​​​‌‍plan.1 just rules (Footnote discussed.13 14, Fed.R.Cr.P., course, Rule provides omitted). for severance for trial where is Moving applying now to decisions shown even proper where there has been a joinder standards to of counts for joinder of counts in an indictment under Valotta, in Ashe v. 8(a).2 However, Rule а trial court will be (1926), L.Ed. the Court overruled for failure grant to a severance grant peti- reviewed a of habeas relief to a for trial under only Rule 14 if there has tioner who had been in a Pennsyl- convicted been an abuse of discretion. As is stated in single killing vania court in a trial of a man Jamar, supra, at 1106: killing police- in a street brawl and then ruling severance, on a motion for apprehend man who tried to him and had discretion; trial court is vested with a death sentence. The contention carefully weigh possible must preju that, by trying the two offenses to-

dice to the accused the often gether, the convicted man had been de- equally compelling judi interests of the prived juror challenges. reversing process, cial below, which include the avoidance grant of hаbeas relief Mr. Justice needlessly duplicative said, alia, involving trials inter at Holmes S.Ct. at substantially proof. similar 334: Kentucky Kentucky

1. The Rules of 2. The Rules of Criminal Criminal Procedure Procedure provision (Rule 9.16). provision (Rule 6.18). have the same contain a similar appears to little there be interrupting a matter

In so delicate criminal burglaries regular administration evidence of the three сhance that attack, this kind of by law of State charged would be with which Corbett used, and it cannot too much discretion the evidence of the other confused with only it can be done realized that must be charged. which he was More- crimes with limited narrowly upon definitely and over, is no contention here there grounds. these counts for trial con- Follette, In United States because he desirеd to founded his defense denied, 385 U.S. (2nd Cir. cert. testify to some counts and not as contended (1967), petitioner a habeas we are left with the sole others. Thus of three complaints tried on he had been that evidence of crimes related possibility acts committed at dif persons different prejudiced Miller could have murder of robbery, two for two counts of ferent times showing disposition a сriminal counts of assault sodomy, finding him influenced the sodomy and two to commit with intent burglary. one count of guilty of to commit assault with intent counts of substantially undercut possibility curiam, robbery. The court directed the fact joinder of counts for trial at most the these counts. as to all such verdict and that to an abuse of discretion amounted doctrine, Further, since, Spencer under the constitu presеnt did not an issue of such properly, violating without tional dimension. prior felony convic- process, proved ‍‌​​​‌‌​‌‌​‌​‌‌‌‌​‌​‌‌​​‌‌​‌‌‌‌‌‌‌‌​​​​​​​​‌‌​​​‌‍two Steele, Brandenburg In v. 177 F.2d 279 tions, hardly jury that the it could be said curiam, (8th the court Cir. showing of a criminal was influenced a joined in an properly that if counts are of crimes as to disposition by evidence F.R.Cr.P., 8(a), under Rule it is indictment verdict. which there was a directed try to them not a denial оf due Offenses,” : “Joinder of together. See also that, even if Accordingly, we conclude A.L.R.Fed. 479. 39 the of counts for trial could be so 554, Texas, Spencer In v. prejudicial as to constitute a egregiously 648, (1966), 17 L.Ed.2d 606 the Court S.Ct. process, denial of due this is not such a case. quite it an issue that is analo- had before Limit on Cross-Examination presented that here. Under Texas gous to also claims that he lаw, was de person prosecuted for the offense of a being an habitual offender could be tried nied confrontation under the and Sixth concurrently jury before the same Fourteenth Amendments charge pend- also the offender habitual judge’s Svara, ruling prosecution that which, charge together with ing criminal witness, cross-examined, could not be for which he had been convicted othеr crimes of purposes impeachment credibility, of his him such an of- past, the would make in having as to his been court-martialed while meant that evidence of the fender. This army offense, in the for a “theft-related” presented to prior crimes conviction of having to his received less than an honora pending the trying is also jury that the discharge ble from the army and had testi proce- that such a The Court held charge. contrary fied to the in the Jenkins-Svara process to a defend- deny due does not dure having murder as to his a committed ant so tried. crime “relating credibility” to while in Viet case, Kentucky was enti- In the instant having Nam and as to his psychiatric had doctrine, try to tled, Spencer the treatment. an habitual offender it did as Alaska, 308, In Davis v. 415 U.S. 94 S.Ct. burglary him the concurrently try (1974), 39 L.Ed.2d 347 the Court held convicted) and to he was (of which charge there, petitioner that who had been felony con- prior the two prove to burglary convicted of in an Alaska state victions. right breaking had been denied his of confron- house and one conviction for dwelling-house breaking. limiting primar- tation the cross-examination of He relies Estelle, ily on Rummel (5th witness. how- 568 F.2d 1193 prosecution a 1978) panel in ever, sought Cir. which a did determine had imposition key of a life sentence was ruling a that its witness could cruel obtained punishment and unusual where the having his felonies not be cross-examined about (over period were fraud crimes adjudicated juvenile delinquent to be a been $120.75,$80, years) involving about ten probation. and was on Coun- panel this decision petitioner, $28.36. opposing ruling, in sel for aside after banc hearing. set an en it clear made that the evidence would not (1978). F.2d Court has sought impeach credibility to certiorari, granted since 441 U.S. character, by showing but witness bad rath- (1979). L.Ed.2d ways— er to show bias and two was in fear i. e. because the witness imposition We conclude that of a life n probation his having revoked and was sentence as an habitual offender for three cooperative with law enforcement therefore burglary convictions is not cruel and un- the witness would want to and because punishment. usual finger point suspicion Judge Failure of District to Review Trial peti- away from himself and towards the Transcript Evidentiary Hearing or Hold concurring holding in the tioner. As has been the federal dis right his petitioner had been denied of con- granted trict a motion to dismiss Cor frontation, (at Mr. Justice stated Stewart on petition bett’s habeas that it 1112): S.Ct. at failed state a claim for relief. At the opinion, joining Court’s time the district peti court dismissed the neither emphasize the Court holds tion, petition it had before it with a suggests nor con- Constitution supporting memorandum and the motion to every impeach fers case in support dismiss memorandum there general credibility through witness of a of. The contention of is that this cross-examination about delin- should be case remanded to the district adjudications criminal quency convic- not court because it did review the 1000 tions. transcript state page trial or hold an evi Accordingly, even if all of the matters dentiary hearing. sought which it about cross-examine presented they In view of the issues as were, proof Svara of bad character under opinion, are reviewed in this we conclude applicable generally prop- rules ‍‌​​​‌‌​‌‌​‌​‌‌‌‌​‌​‌‌​​‌‌​‌‌‌‌‌‌‌‌​​​​​​​​‌‌​​​‌‍of necessary was not for the district subjects (questions er of cross-examination judge to transcript review the or hold an decide), opin- that we do not are of the we evidentiary hearing to arrive at a correct limiting ion that so cross-examination was deсision, which, determine, we the district right not a denial of the to confrontation. judge did. little, It should also be out that if The judgment below therefore Af-

any, could done harm have been to Cor- firmed. limiting defense by bett’s so the cross-ex- since amination Svara admitted he had KEITH, Judge, dissenting. been convicted of murder Miller. I respectfully dissent from the majority’s Claim Cruel and Unusual Punishment opinion presented in this case. Thе issues imposition Corbett claims that of a by the of this case circumstances are diffi imprisonment of life sentence an habitu summarily disposed cult and cannot be punishment is cruel and unusual Bordenkircher, al offender by reference to Jenkins v. Eighth 162, 1979, companion and Fourteenth Amend its case. Un Jenkins, in these ments circumstances when his like court district request two convictions for store- in the instant did not felonies case state from complete transcript of the searching after a

which it could ascertain CENTER, INC., MADEIRA NURSING to a scrutiny that the defendant’s Plaintiff-Appellant, was not in fact fundamentally fair trial determination Because no such prejudiced. case, in this made the district court LABOR RELATIONS NATIONAL review of the BOARD, 9; remand for a careful Emil C. Far REGION NO. on trial record and a determination Director,

entire kas, Regional Labor National prejudice. the issue Board, 9; Region No Relations Counsel, Irving, Nation John S. General that the circum- While I do not contend Board, Defendants- al Labor Relations judge presiding presented by a trial stances Appellees. previously has a defendant whom he over constitute a prosecuted on several occasions No. 77-3370. right to a per se violation of the defendant’s trial, I that such a circum- fair do contend Appeals, United States Court of strong possibility preju- stance raises Circuit. Sixth right to a fair trial. dice to the defendant’s Argued Oct. 1979. case, reviewing federal court In such a duty state conviction has a clear Decided 1980. Feb. carefully any scrutinize the record for evi- review, prejudice. After such a if dence of рreju- convinced that no

the district court is by virtue of

dice accrued to the defendant judge’s ‍‌​​​‌‌​‌‌​‌​‌‌‌‌​‌​‌‌​​‌‌​‌‌‌‌‌‌‌‌​​​​​​​​‌‌​​​‌‍prosecutorial rela- former defendant,

tionship to the a denial of the

requested relief on this is not erro-

neous. in this the record indi-

cates that no such review of the entire trial

record was made the district court. The application

district court denied Corbett’s holding relief without an eviden-

for habeas

tiary hearing requesting and without from clerk’s office of the Court of complete transcript

Kentucky copy state trial. Because of this

from Corbett’s completely satisfy itself that no

failure to defendant, once

prejudice accrued to prejudice was raised

strong possibility of circumstances, I am of the triggering court’s denial of

opinion more, application, without

petitioner’s

erroneous. for a careful view of the remand explicit an determination

record and the defendant’s

issue a fair trial.

Case Details

Case Name: James J. Corbett v. Donald E. Bordenkircher, Superintendent

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 22, 1980

Citation: 615 F.2d 722

Docket Number: 78-3672

Court Abbreviation: 6th Cir.