Matthew Johnson v. Wayne K. Patterson, Warden, Colorado State Penitentiary
475 F.2d 1066
10th Cir.
1973
Check Treatment

*1 65-92, as We take Rev.Rul. § whether,

advisory only. The issue is

using recognizes, the formula which it wrongfully held that

the Commissioner to the reserve were unrea

the additions

sonable and so abused his discretion. Pizitz, Inc., Cir.,

See Patterson 268-269,

F.2d 910, Corp.,

Krim-Ko 16 T.C. theOn presented

record find we no abuse of developments If

discretion. future re inadequacy

sult in an the uniform provisions 3, 4, 5,

serve §§ provide 65-92, Rev.Rul. the reason

able addition to a reserve for bad debts

permitted by 166(c) Code, of the 1954 § taxpayer using has the alternative of probable experience method outlined Rev.Rul. 65-92. §

Affirmed. JOHNSON, Matthew Petitioner- Tennyson Grebenar, Atty. W. Asst. Appellee, Gen., Denver, (Duke Dunbar, W. Colo. Atty. Gen., Moore; Deputy Atty. John P. Wayne PATTERSON, Warden, Gen., Denver, K. Colo., Colo with' him on the Penitentiary, Respondent- rado State brief), respondent-appellant. for Appellant. Denver, Wylder, Colo., pe- Earl S. No. 72-1136. titioner-appellee. Appeals, United States Court of LEWIS, Judge, Before Chief Tenth Circuit. BREITENSTEIN, MURRAH and Cir- Argued Sept. Judges. and Submitted cuit March Decided Judge. LEWIS, Chief judgment appeal

This is an from States District granting District of Colorado Matthew petition Johnson’s for writ of habeas corpus. tried and Johnson was convict- rape in ed for of Colorado and state judgment affirmed conviction was Colorado, appeal. direct Colo., 172 Colo. P.2d 974. giv- presented here, sole issue which was appeal, en full consideration on direct prosecution’s questions whether the dur- *2 danger approach ing the more than and comments cross-examination involving prejudice argument infringed upon potential during closing of the rights. Amendment defendant’s Fifth remain to silent Johnson’s view, this cross-examination our the fifth amendment. by and the district the brief comment During that he trial Johnson testified attorney does not constitute reversible complainant the had intercourse with error. 473 at 977. P.2d her invita- her but with consent and at caught her at- He testified he tion. tempting argues appellant the The offered to take his car and she Supreme correct in was Colorado Court WQuld him if he to have intercourse with distinguishing Arnold and Nolan and During police. cross-exami- call the argues that the recent of further Johnson, following ques- nation of 222, York, 91 401 Harris v. New U.S. S. place: tions and answers took dispositive and 28 L.Ed.2d is Ct. Q. you Johnson, Now, Mr. didn’t tell overruled Nolan and Arnold should be you? police this, did they with insofar as are inconsistent No, A. sir. district court re Harris.1 The federal anyone Q. Arnold in lied on Nolan The first then that and time rights today had constitutional been heard this is here Johnson’s has Moreover, court, the court considered is correct? violated. controlling. it not Harris and found No, A. sir. I told Mr. Hellerstein reasoning court the district is The me he out see when came granting the order sound we affirm and County Jail. corpus. petitioner’s writ of habeas Q. attorney, Hellerstein, your is Mr. 85 380 Griffin U.S. that correct? that it held Yes, A. sir. prosecution was error reversible During closing argument prosecution comment an accused’s or the court to again referred to failure to Johnson’s testify in and take the stand failure to story. police tell his this would im- To allow his behalf. own interesting And isn’t is pose penalty of a con- exercise on the he first time that has decided to right. Supreme Court stitutional than, course, tell the truth other he principle in Miran- further refined this lawyer, testified that told his therein: da. The Court stated police. didn’t bother to tell today, it our decision In accord with Johnson maintains an accused’s penalize an indi- impermissible silence at the time of cannot arrest exercising his Fifth vidual subject relying trial, of comment at privilege un- he is when Amendment Arizona, principally on Miranda 384 interrogation. police der custodial 694; U.S. 16 therefore, not, prosecution United States trial fact stood use at Nolan, 2d privilege in his or claimed mute denied, cert. 468, n. face of U.S. accusation. 90 S.Ct. L.Ed.2d 187. Colo at 1625. distinguished rado these Arnold comment was Nolan and In both authorities and held: had exercised made cross-examination and the brief silent after arrest to remain his by attorney comment the district this silence was tantamount and that guilt. argument closing plain error rebuttal does This was considered during in- said statements are Harris held that statements taken interrogation in current custodial contravention consistent with they satisfy legal rights standards delineated in accused Miranda purpose used at trial for the of trustworthiness. limited appellant maintains When defendant makes a statement at in both cases. distinguishable trial which is inconsistent with an ear that the instant case is clearly credibility was made that lier statement his as no direct comment question. si fol remain This rationale does not exercised an indication low silence at time arrest. lent or that his guilt. properly well This distinction As found in *3 case, penalty on exer at time A is levied instant of ar taken. any in rest is not an cise of his constitutional event, inconsistent or contradic may easily tory jury draw statement. at the time of and the Silence prejudicial simply See United is inferences. arrest the exercise a consti Nielsen, Cir., persons 849. tutional 392 F.2d that en v. 7 all must agree joy qualification. Nor the Colorado can we with Su without See Gillison v. preme States, U.S.App.D.C. do not United the comments 130 Court that they irreg constitute reversible error because 399 F.2d It would indeed be danger approach “no ular and to more than anomalous warn an accused potential prejudice.” silent, 473 he P.2d that has the to remain says anything at in 977. We United States said be used v. weigh against pra, him, however, to that we “decline if he does remain su comparative prejudice when the calibra silent that too be used him. McCarthy only quantity Cir., tor See States, can be the of comment v. United 6 rights.” 298; Brinson, 25 of constitutional 425 F.2d violative United States v. F.2d 6 at 206. 411 F.2d Fowle United States, Cir., 9 This would argues Appellant com practical allowing effect of ment on Johnson's failure to tell his sto prosecution to use at trial the fact that ry police impeach to the to was used an silent, clearly accused remained mak testimony and falls therefore within the ing the assertion of the constitutional York, supra. ambit of Harris v. New right costly. See Griffin v. We do not so read But see Harris. supra. Ramirez, Cir., United States v. 5 441 judgment order 2d the trial denied, cert. U.S. granting petitioner’s writ of ha- 30 L.Ed.2d S.Ct. 113.3 Under Harris corpus beas is affirmed. prosecution prior can use inconsist ent impeach statements to stand, defendant who has taken the BREITENSTEIN, Judge (dis- Circuit prior even if those inconsistent state senting) .

ments were in taken contravention of safeguards Believing in majority announced Miranda. opinion underlying yet rationale of Harris impede throws to another roadblock rights that the fifth amendment of an the search for in truth the administra- per accused cannot be used to sanction justice, respectfully tion of criminal jury. A defendant majority permits cannot allowed to dissent. The a defend- ant, without fear of by testifying who in his own behalf prior from inconsistent immunity, statements as has cast aside the to cloak impair put would enforcement of a wit that coat back on when the cross-ex- obligation ness’ speak truthfully. discomfiting. to amination becomes Appellant argues peculiar also the instant determinative circum- ease more in line our with recent de- stances of Julian. Julian, cision of United States v. inapposite premise 450 F.2d 575. Julian is to 3. The Ramirez is that silence the instant case as the comment therein time of arrest an act inconsistent competency testimony given related to the of the defend- at trial. 441 F. with simply deny validity ant. We did not limit the rule of Nolan 2d 954. We premise. and Arnold but held rather it was not of the corpus majority says nothing prisoner about this habeas This is a state granted seemingly principle relies Miran the district court but which Arizona, charged Defendant, da 1602, lief. rape, who was U.S. behalf and Califor testified his own Griffin nia, 1229, 14 L. was consensual. said that the intercourse without Ed.2d and Tenth decisions rr Circuit cross-examination, O applicability objection, later. The he said that before be mentioned only destroyed by defense of Miranda is Harris had mentioned the consent argument, York, 222, 226, closing lawyer. and New U.S. again objection, prosecutor says Mi 28 L.Ed.2d which without per the use of silence. randa is not a license for referred jury perti Griffin is not defense. what does discuss nent case the defendant because controversy. We me is the crux *4 did not the take stand. the Fifth a conflict between have here differs from Harris The case at bar privilege self-in Amendment by in there the that was a principle that wit the crimination and prior inconsistent statements. Here we empha truthfully. By ness shall opinion ig majority right have silence. The sizing and Fifth Amendment the States, nores Raffel 271 U.S. v. United glossing demands policy which over 494, 497, 566, 568, 70 L.Ed. regards 46 S.Ct. a and which truth of witness permitted which cross-examination proceedings for adversary aas search pre-trial on silence and said that “hav sight majority truth, loses ing of immuni once cast the cloak aside The must be maintained. balance which will, ty, may not it when sup resume at majority is to decision effect of inconven ever be cross-examination press reasonably on bears a fact which embarrassing.” Raffel was ient or credibility hence, and, As on truth. said overruled, in examined, Grune but not U.S.App. States, Tate States, 353 U.S. theory wald v. United 377, 381, “the D.C. 1 L.Ed.2d 931. 77 S.Ct. judicial suppression a of truth has that the circumstances beneficial effect on the administration Grünewald, ob over cross-examination perhaps justice unproved un and jection pre-trial a claim on provable.” improper, Fifth Amendment was majority opinion is The thrust of the any on Court did base its decision de- Fifth Amendment a right instead constitutional but said has to remain silent. fendant acting supervisory pow it under its was difficulty agree. I The here of criminal er administration over the thereby defendant took the stand justice. 77 S.Ct. right. waived his constitutional Under us there was In the case before opinion par- majority can there be a objection contemporaneous to the either right, tial of a a waiver constitutional the remark premise or to cross-examination accept. I which decline to that, argument. say in the circum- I Supreme said, Court has and we presented, permit the defend- stances by said, taking have a de stand the constitu- ant to rearm himself subjects himself to fendant cross-exami a to convert criminal tional shield is reasonably nation on related matters into a truth trial from a search subject matter his direct exami player. by game the cleverest to won be nation. 402 U. McGautha States, 347 U.S. v. United Cf. Walder 65, 183, 215, S. L.Ed. Turner, Sinclair Supreme 1158, 1165, Court in 2d 1048, action of its su- on placing decision Grünewald its pervisory power significant. Federal competence, silence is admissible on supervisory power courts have no over credibility. is not also admissible on justice the administration of criminal in My position is that a when corpus state courts. Federal habeas re- impeached any testifies he like prisoner lief is available to a state when other witness. The use of si- deprived he has been aof secured impeachment depends lence for by to him the United States Constitu- whether, presented, in the circumstances tion. I do not know what federal consti- inconsistency there is such between si- tutional has been denied the de- reasonably lence and only possible fendant. reliance can permit credibility the use of for immunity be on the from self-incrimina- impeachment. In the at bar the tion ceptance must based on the ac- did the discre- exercise partial a the idea of waiver. tion which it has area because of no know decision objection. contemporaneous there nowas permits partial Court which a waiver of I believe that the cross-examination right. approval a constitutional of proper impeachment purposes be- open such an idea will Pan- veritable cause common sense that on teaches ar- dora’s box. rape rest for forcible accused will an claim fact. consent such be the mentions three Tenth Beyond question, person has the Circuit decisions. The first is United *5 arrested, to remain silent when Cir., Nolan, States 416 F.2d and when That si- accused a crime. 593-594, against lence not him to es- be used 227, 24 facts crime. tablish the commission of a analogous Nolan are to those in the case difficulty here is that the defendant did except at bar that Nolan was a federal Instead, not maintain the silence. prosecution and here we have a state took the stand own defense. prosecution. So far as Nolan is con so, subjected When he did himself to enough say that, cerned pertinent cross-examination. situa- dissent, reasons stated in would making, making tion was not the consign major the case to oblivion. prosecution. of the The admission of ity quotes from United inculpa- per silence was se 205-206, the ef tory. weigh fect court will com considering parative bar the prejudice. may, Be as it recognized Colorado Arnold not in because there the protection competition between the did not take stand. exculpatory self-incrimination and man- evidence was introduced through Julian, date that witness shall fully truth- others. United States 575, 578-579, permit and held that there reversi- F.2d Colo., People, ble error. ted cross-examination on silence. The Nothing P.2d the federal says inapposite Julian requires contrary Constitution to the instant case because the comment proceeding. in this habeas competence there related to the Competence defendant. is a mental I would reverse and remand the case state; credibility. so also is I am un pe- with directions dismiss the habeas why, able understand tition.