James K. Bassett v. S. Lamont Smith, Warden, Georgia State Prison

showing jury. as to tion of If Ga., Bolton, Atty. Arthur Gen. K. estab- in this ease has introduced alibi Courtney Hill, Jr., Wilder Harold N. your satisfaction reasonable lished Jr., Stanton, King, At- G. Asst. L. David elsewhere the defendant was Gen., Ga., respondent- tys., Atlanta, alleged commit- crime was when the appellee. committed, ted, it would be if one was MORGAN, RIVES, Before BELL your duty acquit the defendant. Judges. Circuit given charge trial was at Bassett’s indistinguishable Judge: MORGAN, virtually from Circuit LEWIS R. charge condemned Smith. 1971, 454 5 Cir. In Smith alibi held this court grant declined to ha- The court below of Geor- used in the state courts In order filed relief. an beas process gia standards. due violated ruled our decision in appeal ques- presents narrow harm- error in the ruling tion of the extent which rising to constitutional di- less error given application. will mensions. I. II. along K. indicted James Bassett was August 19, was decided December Patterson on Charles Georgia, Supe- was based County, decision in the Bib dealing Eighth cases series of Circuit rior murder. Both defendants Court for pleas guilty. which with the of not Their cases entered parole L.Ed.2d S.Ct. 1. His does not render 371 U.S. release Cunningham, action moot. Jones v. retroactivity prob charge. guiding resolution of similar contained in Stovall Den- case, lems Johnson first no, panel 18 L. (1967). There, Eighth the Court the Iowa alibi Ed.2d 1199 sustained Circuit charge against which must be attack. articulated three factors a due granted making immediately de considered case, v. Ben- terminations : certiorari Johnson nett, 1247, 20 L. (a) purpose to be served disposition Before Ed.2d 102 standards, (b) new extent Johnson, however, reliance law enforcement authori- Stump v. Ben- en banc to consider went standards, (c) the old ties on nett, 1968, 111, a case 398 F.2d effect on administration of charge. involving the Iowa same application of a retroactive of the new Circuit, three standards. panel dissent- members of the Johnson Id., 297, at 388 U.S. 87 S.Ct. 1970. See ing, concluded that con- also, Illinois, 278, Adams 405 U.S. 92 v. guarantee by process travened due 916, (1972); S.Ct. 31 202 L.Ed.2d Wil- the burden of on an es- States, 646, liams 91 v. United 401 U.S. De- sential element On crime. 1148, (1971); S.Ct. 28 L.Ed.2d Rob- 388 shortly Stump, 16, 1968, cember after Russell, 293, erts v. 392 U.S. 88 S.Ct. for Court vacated Johnson 1921, (1968). 20 L.Ed.2d 1100 light Stump. reconsideration in The Court has held that 253, Johnson v. 393 89 S. U.S. given effect must be rule where a new 436, Ct. 21 L.Ed.2d 415 theOn * * * “major purpose [the] day, same the court denied certiorari in aspect doctrine is to overcome an Stump. Stump, Bennett v. 393 U.S. substantially impairs criminal trial 1001, 483, 21 L.Ed.2d truth-finding its function and so raises questions accuracy serious about the Georgia initially The State of con- * * * past guilty verdicts in trials ”. tends that our in decision Smith should States, 646, Williams v. United 401 U.S. applied prospectively only be from the 653, 1148, 1152, 91 S.Ct. 28 L.Ed.2d 388 decided, date on which it was December (1971). However, recog- the Court has 14, is, however, This course fore- nized that “the extent to which a con- by original closed decision Smith practice demned integrity infects the explicitly applicable which was made truth-determining process at trial all trials after conducted the date of the ‘question probabilities’ ”. Stovall v. Supreme Court’s denial of certiorari in Denno, 293, 298, 1967, 388 U.S. 87 S.Ct. Stump. According- n. 4. 1970, 18 L.Ed.2d 1199. Where the question ly, the narrow which we consid- Court has er here is whether the decision should be applied retroactively to trials conducted been unable to conclude that the use prior to December practice” of such a “condemned past presents criminal trials substan- tial likelihood that the results of a III. number of those factually trials were origin From its in Linkletter v. Walk- incorrect, [it not accorded has] retro- er, 381 U.S. L.Ed. active effect to the decision condemn- 2d (1965), newly the doctrine that practice. announced principles constitutional could, law criminal under certain cir- Williams United cumstances, given prospective limited 655 n. 91 S.Ct. application developed complex (1971) into a (emphasis added). body of decisional law. The example, most fre- for Wade, United States v. quently cited formulation of the criteria U.S. 87 S.Ct. 18 L.Ed.2d 1149 pre IV. (1967) required counsel at , which applied retroac line-ups, was trial tively Upon consideration of the three though “aimed the rule was even Denno, factors enumerated Stovall v. avoiding trial unfairness at enhancing we conclude that retroactive reliability the fact- to De trials conducted Smith finding identifica the area of required. cember possibility of evidence”, tion Purpose A. The Rule the Smith truth-determining process error outweighed by adverse recognized origi- was As the administration Georgia charge nal Denno, supra, at 388 justice. likely appear contradictory Stovall alibi was Similarly, jurors. lay hand, S.Ct. 1967. On the one application to denied retroactive instructed that af- alibi was an Louisiana, 391 U.S. State of Duncan firmative defense which the accused L.Ed.2d prove must to the reasonable satisfac- (1968), cannot held that states jury. However, jury which tion of the request serious trial refuse further instructed to consider all the ev- reasoning: cases, including idence, alibi, criminal that of in deter- mining guilt beyond of defendants the institutions the context of [I]n way reasonable doubt. The suggested adopt practices which and apply required right laws, the our criminal accept proof presence the state’s of if it prevent generally tends trial reasonably was not satisfied as to the * * * repression. arbitrariness and truth of the defendant’s alibi evidence. however, assert, would We Indeed, strongly the as a whole any particular every criminal trial —or emphasized requirement proof the of be- judge is un- a alone trial —held before every, yond a reasonable doubt of ele- may- be never a defendant fair or that including crime, presence. ment of the by judge fairly as he treated a as apparent In view of these contradic- jury. a tions, the held Smith court the Woods, process 392 633- DeStefano U.S. violated due likely 20 L.Ed.2d was to cause “confusion” and cre- 88 S.Ct. grave danger “jury ated Illinois, (1968); also, Adams see [might] incorrectly plac[e] the burden L.Ed.2d U.S. proof petitioner” on the of to the fac- as (1972); v. United Williams presence tual issue of his at the scene of 1148, 28 L.Ed.2d 91 S.Ct. the crime. at 454 F.2d 578. purpose decision of being may be elimination stated teach that These decisions ambigu- possibility highly of the that a may possibility mere rule charge might contradictory ous and lead reliability of some effect on the an erroneous belief that fact-finding process does not automati apply was free to lesser standard of application. cally require its retroactive proof to an essential element of the where the rule is aimed some generally, then, Even rule More crime. preserving presump- degree improving aimed at “the the truth-determin was at maintaining tion innocence” “the trial, court must function placed proof on the harsh burden of weighing judgment its exercise best prosecution”. State in criminal against adverse factor this at 454 F.2d 579. justice and the on the administration good of state law enforce purpose faith reliance undoubted- rule is reliability ly fact- linked to the ment officials. concerning standard, finding process. Rules allo- correct a substantial number invariably resting proof reached an erroneous verdict on cation of burden concerning judgments possibility policy error. flect factual We think the degree accuracy is remote that a is demanded substantial number of juries Supreme erred both As the of these counts and fact finder. factually Speiser reached a incorrect had occasion observe verdict. Accordingly, Randall, 513, 525, retroactivity is not 78 S.Ct. auto- 357 U.S. matically required (1958): if the other two fac- L.Ed.2d weigh against strongly tors it. litigation plain it is all kinds of

that may burden of lies where the B. Reliance the Old Justified outcome. be decisive of * Standard * * litigation always There is margin error, representing error conclude We that the factfinding, parties which both Georgia had a reasonable basis belief * * * must into account. take proc that its did not offend due margin of error reduced as [T]his prior ess to December [criminal defendant] concededly State’s reliance was process [govern- placing on the Supreme any founded Court deci * * * per- the burden of ment] sustaining sion or similar suading the factfinder at the conclu- charges against a due attack. guilt beyond sion of the trial of his a Nevertheless, very absence reasonable doubt. part action on the condemning of the federal courts nearly century-old prac requirement proof beyond a rea tice of the courts to De is, then, primarily sonable doubt aimed gave 1968, inevitably cember rise insuring person that no lose liber implication practice did not ty because of an erroneous verdict based offend the Constitution.2 upon factual error. also In See Re Win- ship, Prior to the Court’s denial L.Ed.2d 368 Stump, certiorari there were no eases Nevertheless, the extent to clearly which an which foreshadowed the unconsti- practice unconstitutional tutionality Georgia charge. infects the the of The fact-finding process “necessarily is always a due clause has been in- degree”. matter of terpreted permitting Johnson Newv. Jer- as the states wide sey, 728, U.S. fashioning S.Ct. in 16 latitude rules of evidence (1966). Georgia procedure. L.Ed.2d 882 Spencer Texas, and v. charge did unequivocally not shift the U.S. S.Ct. proof. merely burden of possibility (1967); created States, Lutwak United jury might misap- that the 97 L.Ed. 593 prehend the burden. order to jury Federal review of a Georgia the charge reach appropriate conclusion that the only op- where it charge “presents a oppressive substantial likelihood erates in arbitrary an and that the results of a number of those manner so as to render the trial funda- factually incorrect”, mentally trials were Higgins Williams unfair. v. Wain- supra, 655, wright, United at 401 U.S. 424 F.2d 177. Thus, n. necessarily we Oregon, would in Leland (1) ju- to believe that: Numerous (1952), 96 L.Ed. 1302 the charge ries and, Supreme were upheld confused the in the of fact, applied proof persuasion a lesser standard of the plea burden of of of in- presence, (2) as to sanity Oregon the issue of and of in courts, the even juries apply though those that in did fact an in- permit federal courts did not Georgia State, alibi doctrine first enunciated in Harrison v. 83 S.E. persuasion. Stump the of of certiorari changed. in situation in the burden such a shift strong support, sequence Leland, course, of those lent of it the by analogy, validity of Geor- Circuit cases made evident that the greater insanity charge. Oregon im- gia Court’s action had treated port than the cast usual denial certiorari. an affirmative defense dogged proving Thereafter, refusal5 of burden of it. the defendant the Georgia recognize similarly de- courts Georgia constitu- characterized the time, tional in how- flaw became less At far alibi. the same fense of ever, jury Oregon however, reasonable. On balance allowed prior conclude that of the accused’s that date the to consider all evidence determining reliance was the State’s whether unreasonable. mental state proved beyond state had a reasonable C. on the Administration Effect every crime, includ- doubt element Justice malice, premeditation, deliberation, scarcely disputed Georgia Finally, Similarly, be can and intent. charge permitted that full retroactive of Smith to consider along ad- a drastic would have evidence of alibi accused’s ministration State with all the other in the case as evidence Georgia. creating The defense of alibi has tradi- de- reasonable doubt tionally much been a favored one. had committed elements of fendant all Georgia charged. asserts crime routinely given in thousands reasonably courts could have relied on 1968, in concluding type trials to December Leland presence at which the factual issue burden of did not of- shift process. may may or the scene of the crime fend due is, have been a substantial There one. supporting Another factor the reason- course, knowing precise way Georgia’s ableness of its reliance on af- number of convictions that be charge is that the has defense of alibi fected, but reasonable assume historically singled been out numer- large. that the number would be jurisdictions varying ous special forms argues view of Bassett At treatment. the time the Su- already applied has this court fact that preme Court denied certiorari occurring after trials to all its decision only states, Iowa, two still im- 16, 1968, the incremental December placed upon the criminal defendant application would pact of full proving However, burden of alibi. prior decision slight our placed upon least six states the defend- rule to already the new extended going ant the burden of forward peti- habeas great the evidence of alibi.3 Still other states however, argument fal- tioners. permitted instructions one concedes Even if lacious. alibi evidence towas be received cau- custody in minority held of those a small tiously because is it a defense that is Georgia tried were by the of State easily fabricated.4 question, nevertheless in it is the date to Georgia charge likely to was never an ob- are individuals these true that ject scholarly judicial praise. of or most serious convicted of the been have Nevertheless, say Moreover, pas- cannot that of the crimes. sage Georgia should have been precisely to indi- time, obvious it is these of that the to to courts rose level difficult the most will be who viduals factors, of constitutional error. retry. After the denial it can these view of In Sullivan, 3. The states are listed in v. Ben- 354 Mass. wealth v. nett, (1969). 398 F.2d n. 3 N.E.2d g. State, 4. State, See e. Bolin v. Tenn. 5. See Thornton (1966) ; 405 S.W.2d Common- S.E.2d 193 hardly principles further of require be said that extension that plete those two com- will have the rule announced only retroactive of the rul- impact ing de supra. a minimum on adminis- in Smith v. of criminal law in the State of tration concluding paragraph In the of its Georgia. opinion, majority summarizes its “ * * * “balancing” test as the re- possibility Georgia mote charge may alibi

V. integrity have affected the summary, possibility the remote fact-finding process in the trials may have alibi given outweighed which was is integrity fact-finding affected the process upon prior considerations reliance law giv- in the trials in which it was upon and of the ad- outweighed by is en considerations of justice ministration State upon prior po- reliance law and of the Georgia.” disagree deference, With I impact upon tential the administration weight accorded to both sides of Georgia. in the State of Ac- the scales. applied cordingly, the rule will be recognize only To possibili- to trials conducted after December “remote ty” judgment may the district dismissing petition integrity affected the for habeas of the fact- finding process is, corpus ignore submit, I to the basic rationale Smith decision Affirmed. expressions which uses such “ * * * caused confusion in the Judge (dissenting): RIVES, Circuit instant case and created a substantial agree question I the narrow jury’s incorrectly likelihood presented is the extent to which rul- placing the burden of in Smith v. petitioner prejudice. much given appli- will be * * * * Accordingly, pre- we must Judge The Chief cation. of this Circuit prejudice sume that resulted. recently referred to the “retroactive “* ** * yet no [TJhere theory” enigma wrapped as “another doubt that a shift in the burden of mystery,” and has reviewed most proof of an essential element of the pertinent cases to sustain his conclu- pro- rise to crime does constitutional that, “Perhaps sion no other area portions and renders the trial funda- constitutional law is more enshrined mentally presumption unfair. puzzlement apparent logical and incon- innocence and harsh burden sistencies.” Vaccaro v. United proof placed on the criminal Cir. However, at prosecutions are two of oldest and principles least two stand out bold re- rights protected by most fundamental uniformly approved. lief as The first is * * * * They our Constitution. general is the rule and purport protect all citizens from prospectivity “arguably is not even punishment by the threat They mistake. except course” in “new” constitu- important are therefore far too interpretations change tional fundamental classified as States, 1971, law. See Williams v. United constitutionally protected.” less than “ * * * any While, concededly, 388.1 second is that does procedure seriously intend, import which not so the clear of its threatens convict substantial submit, number of innocent I cast serious persons reasoning must be abandoned and retroac- soundness doubt tively uprooted.” opinion. Vaccaro, supra, sys- Smith Under our p. tem, F.2d me to over- clear to takes an en banc court seems principle implicitly recognized throughout opinion. majority That is ago. The division has been clear and wholeheart- I adhere rule Smith. during opinion bitter in the cases decided edly decision and to both years.” last 6 in Smith. weight go accorded now to the Let us Georgia neither nor was Iowa of the scales —“considera- the other side justified relying upon decisions of upon prior law reliance tions of its own courts. There impact upon the adminis- course, interpreta on this matter of the of Geor- tration tion of the United States Georgia's gia.” reliance That complete Constitution absence of au always seri- shrouded law was thority courts, from the federal other be demon- doubt can constitutional ous Bennett, 1967, than Johnson v. by comparing footnote 2 of strated 677, 386 F.2d in sustain the alibi 3 of with footnote struction of either of the two states. opinion: appli state of the law leads Georgia “2. alibi doctrine general cation of the rule of retroactivi first enunciated in Harrison v. ty recognition prospectivi and to a State, 129, ty 9 S.E. 542 “arguably is not even (1889).” course” there has been interpretation “new” constitutional State, “3. In Harrison v. 83 Ga. changes position the law. That was the (1889), 9 S.E. 542 the Chief by taken sitting Judge en Supreme Stump recognized Bennett, banc v. 398 F. problem. Court this 2d 123: that, It seems to us met- aphysics trial, great is there oppressive “That an difficulty distinguishing be- defend to a criminal burden of tween doubt reasonable not a new ant violates due specific defense of alibi and law. within constitutional doctrine guilt upon reasonable doubt Under these circumstances are together. the whole case taken directly faced issues of retroac with presence necessary Where tivity. recognize panel of that a We guilt, constitute it seems that court, Bennett, in Johnson presence doubt of reasonable 1967), (8 cert. 682-683 Cir. would, logic, in- unresistible granted 88 S.Ct. guilt. volve reasonable doubt of (1968), also a habeas at 544.” S.E. corpus proceeding by an Iowa state prisoner, refused relief as a num been has matters, including throughout judges ber of in the alibi criticized various Smith, su- The Johnson case eonced its existence. struction. See Smith edly some distinctions pra, has factual 454 F.2d at 575-577. signifi present from the one. Also a simi- instruction Iowa alibi cant is the fact history. In Johnson v. lar ease, Johnson, unlike counsel has care 53-55, then Cir- Cir. preserved by objections through fully Judge the Iowa reviewed Blackmun cuit procedures appellate out the trial and concluded: decisions and argument as to the unconstitu apparent “It is thus tionality of the instruction.” struggled continuously court has Bennett, 1968, 393 U.S. frequently em- In Johnson so the alibi instruction 21 L. ployed of the state. by the trial courts n. quoted ex Supreme Court among of Ed.2d the members division holding tensively from this bit- clear and concluding Eighth Circuit, with a years ter in the earlier cases apprehension large ruling the issue with number for a definite mand convictions that would be I affected. as follows: majority think that overestimates va- express as “We potential cases, the being number of such suggested lidity of the distinctions only one thus far since the de- Instead, Appeals. we the Court supra. cision in Smith v. Con- to remand to that appropriate deem ceding arguendo, however, the correct- ruling the is- definite for a majority’s estimate, ness there sue.” shrinking should be no from such a bur- Judge Blackmun Circuit Then den when it is considered Geor- Eighth majority sponded of an for the gia alibi instruction is infected with a court, follows: en banc as Circuit danger convicting clear the innocent. Stump, pointed out in “4. As Shott, Tehan See United States ex rel. holding there that an our at oppressive burden respectfully L.Ed.2d 453. I therefore due violates to the defendant dissent. new constitutional ‘directly were not doctrine. Thus we retroactivity.’ with issues of faced suggest Stump dissent seems question

in the F.2d at 126. case. 398 definitely panel’s so stated decision in Johnson’s case. America, UNITED STATES of adhere, however, We 682-683. Plaintiff-Appellee, majority that we view case with are faced Johnson’s Hughes LINNEAR, Otto retroactivity. Even if Defendant- an issue of Appellant. were, perhaps suffice case, No. 71-3081. its alibi note Johnson’s issue, us before instruction reached Appeals, United States Court of Stump’s.” Ninth Circuit. supra, July 14, Johnson v. 57; 414 F.2d at compare Wisniewski, State v. Iowa N.W.2d that, to me seems unless we desire circuits, to create a conflict between the holding

we should follow the Eighth Stump, Circuit 398 F.2d at repeated Johnson, and adhered to in

414 F.2d at 57. my majority opinion view con- holdings

flicts both with the Eighth Circuit and with the rationale reasoning of our own Fifth Circuit supra. Smith v. Finally as to the the administration of Georgia,

State of views presently 2. The trial invalidated the under consideration took years applied place later, instruction to the 1934 in 1957. state trial of Johnson. Bassett’s

Case Details

Case Name: James K. Bassett v. S. Lamont Smith, Warden, Georgia State Prison

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 17, 1972

Citation: 464 F.2d 347

Docket Number: 71-2513

Court Abbreviation: 5th Cir.