*1 judg- agree reasons I For these dismissing the of the district
ment be affirmed.
action should BUTLER, Petitioner-Appellee,
Robert C. ROSE, Warden,
Jim
Respondent-Appellant.
No. 80-1412. Appeals,
United States
Sixth Circuit. 26, 1982.
Argued April 13, 1982. Aug.
Decided *2 Leech, Jr., Atty.
William M. Gen. of Jr., Tenn., Jolley, Atty. Robert L. Asst. Gen., Nashville, Tenn., respondent-ap- for pellant. Woods, Nashville, (Court-
Larry D. Tenn. appointed), petitioner-appellee. EDWARDS, Judge, Chief Before KEITH, MERRITT, LIVELY, ENGEL, KENNEDY, JONES, BROWN,* MARTIN, KRUPANSKY, CONTIE and Circuit Judges.
LIVELY, Judge. Circuit granted relief to the The district court in this case and habeas * Judge Bailey 16, 1982, regular 371(b) Circuit a Senior Brown retired from on June and became § provisions Judge. active service under the 28of U.S.C. Circuit the man’s race. appeal. gard Thereupon, Butler v. But- this court reversed 1982).1 participate Thompson, judges ler invited student an rehearing experiment in favor of of an undefined nature with this court then voted him, agreed. Rule Rules of the Cir- to which she en banc. Sixth provides: granting cuit “The effect of the prosecutrix testified that Butler *3 en shall be to vacate the hearing of a banc chairs in a closet in his placed two office previous opinion judgment of this and had Ms. Hudson sit in one while he court, the and to restore stay to mandate the and sat in the other. closed door pending appeal.” the case on the docket as a perform the dark he told Ms. Hudson to Following supplemental briefing appeal fellatio, do, which she refused to believ- argued orally was to the full bench and ing experiment designed that the was to submitted for decision. a study response her in such situation. however, dispelled, This belief was when
I. appellant announced that he was petitioner rape The was convicted of a produced sharp “into violence” and ob- a in the criminal court following jury trial ject which he said was a knife and which a County, neck, of Knox Tennessee. Butler was against the victim’s threat- held 34-year-old sociology male instructor in to cut her if she did not ening throat University of Tennessee at the time of cooperate. After several minutes of fel- latio, the events which formed the basis of the appellant made Ms. Hudson charge rape. complainant, up jeans of The Jean stand while he removed her Hudson, 18-year-old was an female student then had her on his so that panties, lap sit in one of Butler’s classes. The Tennessee he was able to have intercourse. Ms. Appeals against Court of Criminal summarized thе her hands the wall Hudson braced during evidence as follows: at about shoulder level this latter part ordeal. The evidence trial adduced showed 7, 1976, Hudson, relaxed, that on a appellant ultimately October Jean victim, at the University opened student of Tennessee the door and released his Knoxville, sociology took a to her unrefuted according testimony. test defendant, on, office of put the course in- Ms. Hudson her clothes back re- structor. The test had been from purse scheduled trieved her and books class, for the for the following day whole desk in the office and walked to the of- by previous arrangement door, Ms. Hudson point appellant fice at which to early permit intercepted against allowed take it her her and held his foot door, accompany Memphis her brother to blocking it as she started their parents. why visit He her she open it to leave. asked get didn’t stick around for him to her examination, Upon concluding the Ms. but she re- “experiment,” reaction his Hudson question, asked Butler about one pull sponded by using both hands engaged and Butler then her in a disсus- open. door did not run as she es- She sion, telling her that he enjoyed talking caped, fearful that Butler would chase having partic- with his students and them her, route out of longer but she chose the ipate in unspecified experiments. various building possibility so as to avoid the After general several minutes of this con- near the being entrapped in a stairwell during versation the course of which But- instructor’s office. ler asking had been Ms. Hudson about opinions matters, room, her on various he asked Upon returning dormitory to her her how she would react if a black male facts to her Ms. Hudson disclosed these approached screw,” her roommate, and said “let’s urging at whose Ms. Hudson which Ms. replied Hudson that she An university police. contacted the offi- find such behavior offensive prosecutrix university without re- cer took the respondent 1. Warden Rose was substituted as order of this court. in which defense counsel was accused
hospital, ney where she was examined and (2) im- attempting jury; to defraud the she told separate released. On occasions at- permissible prosecuting reference а officer who policeman and second to the fact torney closing university rape handles cases for testified; (3) had not failure happened. recounting what had Each preponder- prove guilt by the state to highly the events was consistent with evidence; (4) punishment ance of the others. Detective testified that Phillips (life imposed by imprisonment) Hud- she observed discoloration on Ms. (5) arbitrary”; “unreasonable and error talking son’s neck while victim was refusing the trial court in to receive evi- her. selecting the method of concerning dence jurors. that claim The district found only posi- Butler did not (2) was meritorious and did not consider tive evidence adduced the defense was *4 grounds other by petitioner. asserted testimony aby woman who was in class However, consider district court did p. with Butler from 4:00 to 5:15 m. on the which were found to “cumulative factors” day question, roughly one and one-half prop- relief was support its conclusion that ques- to two hours after the conduct in er, though these “factors” were not includ- tion. This witness testified that while in in the which the specific grounds ed on presence normally.2 her Butler behaved petitioner based his claim. II. C. very specific respect
A. Petitioner was with (2) to ground application. in his petitioner’s conviction was affirmed Attorney preju- committed State’s by Appeals the Tennessee Court of Criminal argument by making dicial error in final and certiorari was Supreme denied petitioner reference to the fact that Court of Tennessee. represent- Butler was refute the presented no State’s ed counsel at the trial appeal. and on proof. page Excep- At 188 of the Bill of Following denial of certiorari the Su- 15, beginning through tions at line 9 and preme Court of Tennessee Butler filed an 190, 15, through then on line 10 page application corpus for a writ of pur- habeas on the Attorney peti- State’s commented suant to 28 2254 in the U.S.C. United § Also, testify. tioner’s failure to the trial States District Court for the Middle District judge’s cautionary given instruction Though Tennessee. the named respon- at that reemphasized time dent was the warden of a state hav- prison Attorney’s Assistant District comment on ing custody, Butler in his we will refer to petitioner’s failure to the rеspondent-appellant opinion in this as “the state.” The two statements referred to and relied upon by petitioner following: are the
B. Well, you, gen- I submit to ladies and pro se In his application tlemen, for habeas relief you cannot allow that grounds: (1) listed five Im- this case. Mr. Butler is an happen in proper argument by prosecuting attor- you got instructor and have to tell him as Judge 2. his dissent Edwards notes that Thus the could have that a believed forci- imprison- rape place knife-point. fixed Butler’s sentence at life ble took We find punishment jury’s imposing ment and finds this “unusual.” unusual in the Though beaten, rape Ms. Hudson was not she did maximum sentence for forcible under cir- urging middle-aged that while he was her to submit cumstances male where a instruc- pressed something sharp against just given Butler her tor who had an examination to his neck, 18-year-old told her it was a knife and that he was female student lured her into a vul- questioned position vague “into violence.” A detective who nerable with his “ex- talk about periments” raped Ms. Hudson observed a discoloration on her and then her while threaten- “pressure ing neck which lоoked like a mark.” her with knife. which had not raised in the get this and issues been an instructor cannot do get just He cannot do away. This refers to the state courts. “ah, she is attorney say, have an back and fac reliance on “cumulative district court’s put- just telling truth.” Without not tors,” this situation apply and seeks might why witness to show she ting one requir recent decision Supreme Court’s might or she be telling otherwise how remedies. complete exhaustion of state ing otherwise. telling Lundy, - U.S. -, Rose v. See (em- Bill Exceptions, page lines 9-15 (1982). L.Ed.2d 379 In Rose v. phasis original). courts Lundy, the Court held that district Mr. Apparently saying what Ellis is con “mixed petitions” must dismiss —those we rape just going in a case are as exhausted taining unexhausted as well say just up put it is always made than the exhausted deciding claims —rather why up no made or proof to show it was ones. dismissing the unexhausted ones lying to indicate the witness is anything read 1205. We do then can’t con- any way just ap Lundy requiring a court of Rose v. case. vict, any rape convict in couldn’t peals to direct dismissal of a habeas Exceptions, page Bill lines 10-15. court relied in petition because district Immediately following the second state- raised, part sponte, which sua on issues objec- ment, counsel made his made relying solely than on claims rather following tion colloquy: case the petitioner.3 present In the Honor, normally Your MR. ELLIS: unequivocally court held district *5 object argument, to in wouldn’t by the upon relied statements some categorized I that he has think comments petitioner were unconstitutional protection of that we things into an area petition The testify. failure to on Butler’s classifying He is all the witnesses. have. the stage of every er had raised this issue at to going qualify think he is have not be re He should proceedings. state no Because the defendant is under that. the because dis to suffer dismissal quired testify. yet But under his obligation the cake.” frosting “added trict court be in that argument he would included class of witnesses. commenting He THE COURT: is not B. that, Ellis, opinion, on and he is my Mr. how- argument, suggested It was oral the
not entitled to comment on it. And ever, a failure may that there have been has charge will that the defendant peti- the grounds of the which exhaust one not to the applica- rely upon did in his habeas tioner Thank Your Honor. you, MR. ELLIS: that the sen- ground His fourth tion. referring indepen- MR. I am GILL: arbitrary and was unreasonable and tence outside Your party, dent witnesses case. After by the facts of the justified Honor. evidence, Butler version reciting his of Why you make THE COURT: don’t (4), ground “this his statement of concluded jury? that clear to the pun- indeed and unusual cruel sentence ishment,” referring specifically without III. authority. or other federal the Constitution A. However, Eighth cited Amendment his habe- support in the memorandum in the district The state contends granting petition. court erred in relief on basis as Lundy holding approved, dismissal noted in Rose v.
3.
was not
The Court
required
fact
was based on the
district court had identified 10 instances
ap-
misconduct,
grounds
prosecutorial
in his
only
petitioner had included two
five of which
four)
plication (claims
to which he
three
as
While
and
had been raised before
state courts.
See Rose v.
“assessing
undertaking by
remedies.
had not exhausted state
this
trial court
Lundy,
atmosphere
In his motion for a new trial
and the state courts were
attоrney cited both Tennessee
federal
to consider and act
opportunity
the initial
authority, including
Eighth
Amendment
upon this constitutional claim.
Constitution,
support
U. S.
claim that his sentence constituted cruel
C.
punishment.
and unusual
In his brief be-
also contends that
state
fore the
Appeals
Court Criminal
Butler’s
improperly
por
district court
considered
attorney
only
cited
cases for
Tennessee
closing argument
tions of the
to which no
proposition
petitioner’s punishment
that the
objection had been made at trial. Tennes
was unreasonable
arbitrary.
dispos-
contemporaneous objection
see has a
rule
ing of
appellate
may
applied
preclude
which
considera
cited the Tennessee
which set the
statutes
appeal
tion on
of matters which were not
punishment for rape. Though
attorney
Sutton,
objected to at trial. Bee
v.
State
relied
sup-
Tennessee authorities to
(Tenn.1978).
We believe the Court of Criminal reviewed lines 9 claim of cruel and unusual punishment 10 through page was 15 on 188 and lines Eighth exhausted. The Amendment specifically upon through page was relied in 15 on 190 of the Bill of Ex the trial court and in the Supreme ceptions Court of and found that neither statement Tennessee. The substance the claim constituted a comment on Butler’s failure State, 4. 28 § U.S.C. 2254 ble in the or there is courts of that either an absence of available State correc- (b) application An for a writ of habeas process tive or the existence of circumstanc- corpus person custody pur- in behalf of pro- rendering process es to such ineffective judgment suant to the of a State court shall rights prisoner. granted tect the appears not be unless applicant has exhausted the remedies availa- testify. the defendant would stating that required The district court testify. to of the defense during presentation that Then corpus claim in habeas to consider case, by had been called after two witnesses infringe petition- statements did these same testify on Fifth and had refused to him other right to remain silent. er’s attorney grounds, Lockett’s Amendment which closing argument of the portions jury’s presence the court in the advised nor con- objected to at trial were neither the next wit- Lockett would be he believed not a appeal are by a state court on sidered recess, however, the a brief ness. After ruling by proper basis for habeas the de- judge the trial attorney told this court.5 the district court or and the testify had decided not fendant his cross-examination defense would be IV. these cir- witnesses. Under prosecution A. that re- the Court determined cumstances California, closing In Griffin v. peated prosecutor’s references (1965), the 1229, 14 Su- prosecution’s L.Ed.2d evidence rule of preme Court held that a California “uncontradicted” did “unrefuted” and on fail- on the permitted impermissible comment comment evidence which constitute an testify at a criminal ure of the defendant defendant’s failure prohibi- trial violated the Fifth Amendment conclude, however, prose- We against compulsory testimony. tion this case did closing comments in cutor’s infer recognized jury may that a prohibitions. not violate constitutional the defendant guilt from silence of clearly focused Lockett’s own counsel had first, for the impermissible silence, event but found it her attention on the silence of outlining contemplated her by “solemnize[] ” and, second, him .... against accused into evidence opening statement at 1232. In Griffin near stating Id. at 85 S.Ct. to the court and case, comments, prose- court and the that Lockett would both close of the viewed cutor, The court witness.” When were direct and adverse. “next it seems clear background, the inferences which among against instructed that remarks add- closing of the might draw from failure that the had impression ed testify was that “those defendant [infer- Lockett’s refusal been created already are the unfavorable to the defendant ences] prom- been had after probable.” more Id. told lawyer her a defense ised “made much” 1230. The stand. would take the that Lockett “These testify: failure to take the stand things he has not seen fit at 2959. Id. at 98 S.Ct. dead, explain Essie Mae is deny or ... Oregon, 435 U.S. Lakeside v. Finally, in *7 story. of the The she can’t tell her side 1091, 1092, 319 335, 55 L.Ed.2d 333, 98 S.Ct. 610-11, Id. at 85 S.Ct. defendant won’t.” upheld prac (1978), Court Supreme at 1230-31. giving “protec a judge trial tice of a state ob instruction,” defendant’s over the very dealt with a tive Supreme Court defendant Ohio, jection, in Lockett v. 438 failure different set of facts pre or to no inference 586, 2954, 973 rise “gives 98 57 L.Ed.2d U.S. defendant, and this sumption against counsel outlined a (1978). There defense in determin statement, by you referring to must nоt be considered opening defense or innocence.” show, question guilt of though ing what the evidence would proceed- appeals in these Judge quoted in his state court Edwards has 5. his dissent interesting ings. opinion to note that It is several state- from the district court’s counsel, very courtroom aware of the prosecutor who was were not relied ments of the which only atmosphere, at lines the statement upon by application found for habeas Butler in his objectionable. page 190 must rest on 10-15 relief. We believe Butler’s claim specificity language which he set forth with 1170 argued
The defendant
the privilege
improper
comment: Whether
the lan
against compulsory
guage
self-incrimination as
used was manifestly intended to be
infringed
defined in Griffin is
when a trial
or was of such a character that
the jury
judge,
objection,
naturally
over a
and necessarily
draws
take it to
be a comment on the
any way
attention in
to the de-
failure
the accused
This test
fendant’s failure to
was derived from the
testify. Emphasizing
pre-Griffin
that the
v.
privilege involved is not
decisions Knowles
United
against all
States,
168,
testimony,
(10th
1955),
224 F.2d
170
Cоurt
Cir.
concluded
States,
809,
by
judge
adverse comments
a trial
Morrison United
6 F.2d
prose-
or
(8th
811
1925).
cutor could be
Cir.
found to contain the neces-
This test has been
sary
applied
compulsion
appeals
element of
which
both
direct
and habeas
is forbid-
See,
den
e.g.,
Fifth Amendment. An
actions.
United
ex
instruc-
States
957,
tion
rel.
Fay,
which seeks to rule out
D’Ambrosio v.
349 F.2d
961
any “unspoken
(2d Cir.),
denied,
921,
adverse inferences”
cert.
infringe
does not
U.S.
86 S.Ct.
301,
privilege.
(1965) (habeas
Id. at
United States v. 431 F.2d 1970), denied, cert. B. (1971) 27 L.Ed.2d (direct ap At the present time the rule as peal). Every appeals court of adopted has stated developed Supreme the test.6 appears to be that neither a trial court nor a may instruct or suggest to a V. may that it or should draw an infer ence guilt from a defendant’s election A. Griffin, not to testify. supra. contends for an ap the Fifth Amendment does not forbid an plication of the Morrison-Knowles test instruction which advises the of a de which per would result in a se rule in many fendant’s not to testify charges argues cases. He that a statement a the jury not to draw inferences from prosecutor put that defendаnt has on no Lakeside, this fact. supra. When the al witnesses, or no or that the state’s leged infringement consists of statements uneontradieted, evidence is always imper which do not comment directly on the de missible where the defendant is the only fendant’s failure to testify suggest or person who could have contradicted evi an guilt inference of should be drawn from dence prosecution. introduced To fact,
this a reviewing court must look at all hold that such statements should be auto the surrounding circumstances in determin matically treated as unconstitutional com ing whether or not there has been a consti ments on the failure of the defendant Lockett, tutional violation. supra. It is the testify would be contrary teachings third group of eases—those where it has Ohio, supra, Lockett v. where the result been alleged that statements constituted in turned on circumstances of the trial. As direct adverse comments on a defendant’s court, speaking through Judge Jones, failure to testify has given the low —which recently wrote: er federal problems. courts Whether construes” “necessarily
Shortly after
thе Griffin decision was
a
remark as a comment on a
rendered a number of courts
adopted
test
defendant’s failure
testify requires
*8
text,
6.
804,
addition to
Bright,
(5th
the two
1980);
cases cited in the
630 F.2d
825
Cir.
U. S.
following
Muscarella,
242,
decisions are
(7th
1978);
illustrative of the
v.
585 F.2d
249
Cir.
application
S.,
453,
universal
Douzanis,
(8th
of this test: Borodine v.
Catches v. U.
582 F.2d
458
Cir.
1202,
(1st
1978);
Hozian,
592 F.2d
439,
1209-10
(9th
Cir.
U. S. v.
622 F.2d
441
1979);
Dansker,
40,
(3d
1980);
Hess,
1359,
U. S. v.
537 F.2d
63
Cir.
Runnels v.
653 F.2d
1976),
denied,
1038,
Cir.
(10th
1981);
Harris,
cert.
429 U.S.
97 S.Ct.
1361
Cir.
U. S. v.
627 F.2d
732,
(1977);
Whitehead,
474,
denied,
50
(D.C.Cir.),
961,
L.Ed.2d 748
U. S. v.
476
cert.
449 U.S.
(4th
1980);
618 F.2d
(1980).
527
U. S. v.
101 S.Ct.
beginning of testified that trial Jean Hudson At the counsel array, entire Butler’s ing to the with intercourse to sexual she submitted stated: he was he told her in his office after Butler this is you, As Mr. Gill has indicated to pressed had a hard and he “into violence” University an event that occurred on her against was a knife which he said object that the actual campus. You will find against down forcing her head neck while Mr. Butler act of will not be denied. sex jury had his arm. body with comes in you, proof as the will indicate told, you, will indicate to “Mr. Butler been later, forceful that there later, that there was comes in proof as the you My question this at all. about It had this at all.” nothing forceful about was her instructor. Is based on that —he dispute was no that also been advised there he was anything about the fact that there between Jean that a sexual act occurred that would re- her instructor in school at the time and Robert Butler Hudson and degree put higher him to a quire you about, and that she later testified place conduct, higher standard of conduct not was “whether or only issue in the case lay persons, per- imposes than the law Furthermore, her will.” against it was in that relation- sons who have not bеen expected he told the counsel had asking you is about the ship? What am attorney testify. Thus Butler’s Butler to whether or relationship. asking you I am there clearly indicated fact he was her instruc- not the mere place acts took proof would be in your in be sufficient tor school would indicated and had without the use of force require mind to him to come forward the testi- come from would proof average individual? prove more than now Butler, who the mony of process began, the selection After have who could only person was the argues question of the following counsel asked the questions The statements provided it. jurors: panel prospective counsel those of defense are similar to Lockett, Ohio, de- now, supra. As I don’t ex- Lockett v. you Let me ask this — a defense in this case outlined in the event he fense counsel pect happen it will —but “as which would be established testify, should elect not to now Furthermore, fo- counsel comes in later.” that he doesn’t have to and you will tell of Butler’s silence attention against him. cused you not to hold his client to howеver, expected fact, by advising that that be a Would they if jurors asking while determining testify, whether or weigh have to if he should Butler against the would hold it actually the incident occurred take the stand. choose not to way Miss Hudson said it did? trial. at that did
7. There had been a mistrial because agree Butler was unable to at the first trial. *9 impermissible Next we examine the context not the in which assistant district the prosecutor statements of the were say: “He attorney general to cannot do this made. Both rested with the sides had de- just get say, back and have an attorney consisting fense case of the testimony of ‘oh, truth,’ just telling she is not the with- witness, one student who former had at- out putting why one witness to show she tended a taught class Butler later in the might be otherwise or telling how she day afternoon of the on which the events might telling be otherwise.” It is notable involving took place Jean Hudson in But- objection that defense counsel made no ler’s merely office. This witness testified point. only this The admission that the sex that nothing there was unusual about But- act actually had occurred had come from his ler’s behavior at time. The next step mouth only attempt impugn and the in the trial opening argument by was one of Hudson had credibility of Jean been con- attorneys. prosecuting argument This tained in argument. consisted of a recital of the evidence from The in closing argu- other statement point state’s view it evoked no ment which is to have infringed claimed objections from defense. Then in his Butler’s compelled not to to incrim- argument defense counsel reminded the clearly inate himself also refers to the argu- jury earlier, that he them had told “[W]e ment and of defense strategy “Ap- counsel: were going deny not that actually some- parently what Ellis Mr. thing happened closet, in that in that in- [defense counsel] ” 7th, saying structor’s .... This did no more office on than re- October 1976. It is obvious, true. It happened.” spite What state the in followed was a of defense general attack on the credibility promise of Jean counsel’s voir dire that the proof Hudson, though no one had testified that force, would indicate absence of no such she was not a credible witness. proof had in been fact introduced. There statement, objection was an on the This is the context which the closing ground that was prosecutor “classifying argument for the state was made. A de- witnesses,” including all the the defendant. fendant pled guilty, had not his attorney The trial judge immediately responded that had told the jury that actual act of sex in his opinion prosecutor was not com- would not be denied and “Mr. Butler will menting on the failure of Butler to testify. indicate to you, proof later, as the comes in The he judge stated that would charge that there was forceful about this the right defendant had not to testify. at all.”8 Yet at end of the trial the Defense no request counsel made for a person spe- who had admitted that the sex act cial time. charge occurred When the judge and claimed was not forced Thus, was the directed attorney. prosecutor in his to make it clear the prosecutor sought to answer the referring that he was to “indepen- lawyer. witnesses,” Under these (the circumstances it was dent prosecutor) imme- Judge attorney’s replaced 8. proves nothing. Jones finds the defense ref- had been excused and proof by erence tо Butler which would partici- indicate Those who had excused did been “ambiguous.” pate that no force was used If panel The entire verdict. was in the ambiguous, response reference was indeed throughout jurors courtroom voir dire. The equally ambiguous of the replaced who who were those excused heard should not be the basis of a federal every question court’s statement defense coun- overturning Judge a state conviction. Jones sel. proof by also finds the reference Butler “cas- Judge correctly points Jones out that lack of ual” and time.” “distant Whether it was rape consent is an element crime of interpretation. casual or not is a matter Tennessee. when the is told appears reference to us have been calculated that the defendant the sex act and admits accept to condition the as true a version proof forced, will that it was not show to, of the events never which was testified jury very naturally expects some to be argued as fact defense counsel. The forthcoming. questions and statements of entire trial dirе from voir to verdict took less attorney clearly the defense focused the days; than two the statement wasn’t “distant subsequent attention on Butler’s silence. jurors in time.” The reference the fact that *10 focus the one witness C. diately shifted the to produced and argued the had whom defense not where a defend This is a case testimony proved nothing. that her and relied on the merely pled guilty ant during objections There were no further Rather, it is a presumption of innocence. closing or at its conclusion. the jury promised that the case where the was for a mistrial. Defense counsel never moved defense that Jean proof would establish the had Immediately after the con- voluntarily in acts of sex engaged Hudson judge his trial in- argument, cluded the then no absolutely with the objec- were no jury. structed the There This case produced. of consent charge the included the jury tions to which Lockett, The factual supra.9 controlled following instructions: difference, the two cases any, if between innocence of the presumes law the Lockett defense lies in the fact that defendаnt, presumption and that stands the presence the of counsel announced in as a witness for the defendant and main- would be a witness jury that the defendant by satisfactory tains until it is overcome defense counsel present case whereas guilt, he evidence of his and before can be expected he the defendant to jury told the convicted, established guilt must be testify. already he had advised a a beyond cap- reasonable doubt. Not Butler who would the that it would be jury tious, doubt, possible imaginary or an was not used. provide proof force engendered an after an in- honest doubt attorney gave both cases the defense vestigation of the entire evidence and an from they to would hear reason believe inability let investigation after such to defendant, and focused on the si thus easily the mind as certainty rest who elected not to lence of the defendants guilt. Supreme take the stand. As $ s}i $ . & ^ Lockett, though prosecu noted in even You to draw no inference and are prose repeated tor made references place emphasis upon are to no whatsoever as and “un cution’s evidence “unrefuted” the fact that the defendant did not testi- contradicted,” these “added noth remarks fy, right. is his The defendant is had been ing impression already to the innocent, presumed and that pre- to be after testify Lockett’s refusal created sumption irregardless stands in his favor a been defense promised had not, whether testifies or as the [sic] that Lockett would lawyer her and told law casts the upon burden State 98 S.Ct. take stand.” 438 U.S. a prove guilt beyond defendant’s rea- at 2959. doubt, rests upon sonable burden or not irrespective the State of whether D. the defendant testifies. relied We examined the decisions have judge’s the trial together Considered with per- are not upon petitioner, and by the time
statement
to the
at the
a different conclu-
they compel
suaded
arguments,
objection
prosecutor’s
recent
in which this
sion. Two
cases
these
would
erased
instructions
have
granting
granted
has
or affirmed
had
lingering
jury may
doubt the
have
comment
impermissible
habeas
Butler’s failure to
should be con-
testify
are
of a defendant
any way by
siderеd
them.
failure
already
impression
apparently
ap-
been created
which has
9. The dissenters would
limit the
testify.
plication
Whatever
of Lockett
where there has
the defendant’s
refusal
cases
of,
“focusing”
replication
is a factor
of Lockett’s facts.
an
consists
been
exact
jury naturally
determining
nec-
contrary,
we believe Lockett
announced
whether a
To
lawyer
essarily
state-
view
later
a broader
focuses
rule —when
silence,
impermissible
on the
an
comment
attention on a defendant’s
ments to be
even comments that
evidence
“unre-
failure to
futed”
“uncontradicted”
add
distinguishable.
In Rachel v. Bordenkirch-
EDWARDS,
GEORGE
Jr.,
CLIFTON
*11
er,
(6th
tion in his office the day
regular
before the
class examination was scheduled.
CONCLUSION
Judge Lively’s opinion provides an accu-
statements in the
rate summary of the facts of record.
present case were made in the context of a
would
add that defendant’s counsel
trial where the
theory
defendant’s
of inno
conceded before the jury that “something
cence had been presented solely
ques
happened”
closet,
in the dark
and the Court
tions, statements
arguments
of his at
Appeals
Criminal
of Tennessee noted in
torney. This was so even though the jury
its recital of facts:
had been told that
the issue was whether
A search of his
produced
office closet
the acts had occurred against Jean Hud
samples of both
Negroid
Caucasian and
son’s will and that consent
estab
pubic hairs, although not identifiable as
lished by Butler
“as the
comes in.”
belonging specifically
any particular
Although it would be possible to strain
individuals,
prints
and hand
on the wall
from the statements an indirect allusion to
which matched those of Jean Hudson.
Butler’s failure to testify,
it is far from
Also visible in the thick dust were foot-
manifest that they were intended to be thus
prints which appeared to be those of But-
and,
treated
context,
considered in
they are
ler and Ms. Hudson.
not such
require
as to
“naturally and
No one who reads this record can fail to
necessarily” to treat
them as such. See
conclude at an absolute minimum that de-
United States ex rel. D‘Ambrosio v. Fay,
fendant grossly abused his role as teacher.
supra,
laughed
makes me
this case
—because
to tell
you have
extremely angry and the fraud that
ler is an instructor and
cannot do this
gotten up
has
here
him as an instructor he
[defense counsel]
TR. 190-91.
He cannot do this and
get away.
attorney say,
just get back and have an
made it clear
prosecutor
Whether the
‘ah,
truth.’ Without
telling
she’s not
However, it is
is
problematic.
she
putting
why
on one witness to show
rung. And it
the bell had been
clear that
or how she
might
telling
be
otherwise
make the
responsibility to
was the court’s
This lan-
might
telling
otherwise.”
rights clear
defendant’s constitutional
the fact that it
guage
only points up
prosecutor’s.
not the
jury,
who
attorney”
is “an
and not Mr. Butler
point
did defense
in his
At no
maintaining
falsity
is
speaking
jury’s
to the fact
attention
counsel direct
it is
prosecutrix’s allegation,
also
The Su-
had not testified.
the defendant
preme
pointed out that not one witness has been
re-
that a
has held
is “unrefuted”
state’s evidence
marks that the
explain including
the defend-
called
—
did not violate
Grif-
and “uncontradicted”
ant.
clearly fo-
counsel had
fin rule where defense
pages
transcript,
Two
into the
further
attention on the
cused
indicating
open-
testify by (1)
in his
failure to
announces:
ing
what
the defendant’s
statement
what
Apparently
counsel]
[defense
clearly
her
involve
would be when that would
*13
just
in a
case we are
saying
rape
is that
(2) stating
testifying
and
to the court
and
just prior
to a recess that the defendant
just
to
it was
made
going
always say
(the
thereafter
be the next witness
defendant
up
put
proof
why
and
on no
to show
proof
to
and no other
decided not
up
anything
was made
or
to indicate
Ohio,
586,
presented).
438 U.S.
98
Lockett v.
in
lying
any way
the witness is
2954,
(1978). The clear
S.Ct.
THE COURT: He is not
error
THE don’t make Why COURT: “the same standards must (1964)], that that clear jury? to the in accused’s silence determine whether an is proceeding or state either a federal And [PROSECUTOR]: [defense its literal We take that in justified.” in one witness to show brings counsel] Fifth Amend- un- hold that doing nothing that Mr. Butler was sense and Fed- ment, application its direct happened. usual after this (1979), Supreme on L.Ed.2d Government, bearing in its eral in deal- a federal court duty the Fourteenth of reason of defined the States It Amendment, comment case. said: forbids either habeas' ing with a state or the accused’s silence on prosecution pre- corрus statute habeas The federal silence the court that such instructions the state trial in norm of a fair sumes the guilt. is evidence post-conviction state adequate court and (footnote 380 U.S. error. What possible to redress remedies omitted). state is that these presume it does impossible it is the record of this ease error On be without always will proceedings Morton, to me, Judge as it was for duty of a sense. The the constitutional comments conclude that appraise habeas federal other designed were to do quoted above did oc- error that constitutional claim to defendant’s than call the attention belief that as it does the reflecting cur — Obviously there failure to take the stand. liberty deprivation “finality” closet at the people two were the criminal invocation of through the not made. either was or was time the threat achieved at not to be simply sanction is “the facts argued that When the a constitutional expense —is uncontested” completely in this case are abjured. lightly so not one that can be saying is “what counsel] [defense addеd) (emphasis at 2791 Id. at just going are rape in a case we omitted). (citation put just up it was made always say above, af- I would cited up or For the reasons why it was made no show duty of that discharge lying Judge indicate the witness is Morton’s anything to firm the conclu- way,” way I see no to avoid of the writ. in his issuance *14 deliberately prosecutor quite sion that the on “comment violating
was Griffin’s ban JONES, Judge, Circuit R. NATHANIEL silence.” on the accused’s prosecution the dissenting part. in concurring part in and judge’s trial It seems to me that the also majority’s conclusion with the I concur these effectively stop to quickly failure and in state his remedies exhausted that Butler instruction on give to a clear practices and - U.S. Lundy, v. and that Rose court injury. the rights compounded (1982) 1198, L.Ed.2d 379 -, 71 102 S.Ct. comment requires The second case which his claims. our consideration does not bar 586, Ohio, 98 438 S.Ct. is Lockett v. U.S. con- majority’s the I dissent from Lockett 2954, (1978). 973 I read 57 L.Ed.2d at statements prosecutorial clusion that case the defendant’s counsel as a where impermissible not constitute issue here did the failure focused the attention on testify. failure to on Butler’s commеnts testify by promising to of the defendant jury to the shortly before the case went that the control majority recognizes story his and the defendant would tell ease is whether in the instant ling test him on the stand. failing put then manifestly intended used was language jury ever of such character promise In this case no such be or was take it to necessarily reference naturally made and defense counsel’s would testifying defendant occurred accused possibility of on the failure be a comment jury, dire of the before during majori voir at 1170. And the testify. Ante me, negative ever To trial started. a determination that such *15 by words majority The states that Butler’s counsel fendant for an innocent choice of Butler jury “advised the it would be his counsel. provide proof
who would
that force was not
can
anal-
disagree
I also
that this case
used.” Ante at 1173.
cases the
because in both
ogized to Lockett
actually
counsel
stated as follows:
jury
“promised
a defense.”
U.S.
You will find that
the actual act of sex
Lockett, defense
595, 98
at 2959. In
S.Ct.
will not be denied. Mr. Butler will indi-
“version of the
counsel outlined a detailed
later,
you,
proof
cate to
as the
comes in
438 U.S.
events” in the nature of an alibi.
that there
in this at
nothing
forceful
failure of the
at 2958. The
all.
support
testimony
defense to introduce
events,
conjunction
This
of the
ambiguous,
say
statement
is
of this version
counsel’s later statement
may fairly
only
least.
It
be read to mean
with defense
witness, focused
be the next
present
that Mr. Butler would
a defense. Lockett would
Butler’s
demonstrate,
on her silence.
Such a defense could seek to
attention
however,
a detailed
counsel,
not outline
by
of the
did
simply
cross-examination
State’s
witnesses,
testimony to
positive
which needed
there was
forceful
alibi
Rather,
indicated
Furthermore,
simply
it.
support
about
the act of sex.
intercourse
of sexual
was not even heard
that the admitted act
ambiguous statement
com-
will of the
against the
jury.
transcript
the entire
of the
did not occur
protecting
must be meticulous in
the de-
I therefore am at a loss to under-
plainant.
sly
from
and subtle
majority’s
jury
stand the
assertion
fendant and
“[t]his
merely pled
a defendant
may
improperly
not a case where
inferences which
inflаme or
guilty
presumption
and relied on the
not
did not
jury.
influence the
Here the court
not
instruction,
at 1173. Consent is
innocence.” Ante
but
an effective curative
give
defense which the defendant
an affirmative
delegated
prosecutor
rather
—the
has the
to establish
the testimo-
burden
make clear the
transgressor
duty to
—the
Rather,
ny of himself or others.
lack of
to remain silent. Of
consent is an element of the crime which course,
thing,
no
did
such
prove beyond
must
a reasonable
State
argument
rather switched his
to anoth-
but
39-3705(a)(l).
Ann.
doubt. Tenn.Code
§
subject,
er
to conclude his rebuttal
counsel,
with
more comment on the absence of
raising
Butler’s
one
Accordingly,
consent,
thereby prom-
any testimony
the issue of
did not
which contradicted
testimony
promise
ise
from Butler. The
of State’s case.1
case,
a defense in the instant
unlike that in
prosecutor’s repeated
references to
Lockett,
could be and was fulfilled
cross-
Butler’s failure to
present
support
examination of the
witnesses. The
State’s
brought
of his defense
home to the
majority
“promise
has taken the
of a de-
that,
did not
nоtion
because the defendant
fense”
of Lockett
out of con-
wholly
factor
testify, his defense must have been without
text in
apply
order to
it to the instant case.
roughshod
merit. This
runs
over
course,
Of
it would be the rare defense
privilege
Butler’s constitutional
not to testi-
counsel who would not in some sense of the
California,
fy. Griffin v.
phrase
defense,”
“promise
rather
(1965).
Finding
inapplicable
Lockett
to the in-
case,
stant
would affirm
district
FORNASH, Petitioner-Appellant,
Larry
court’s conclusion that the
com-
convey
ments were manifestly intended to
or were of such character
MARSHALL,
Ronald C.
naturally
necessarily
take them
Respondent-Appellee.
to be a comment on Butler’s failure to
No. 81-3720.
this,
In a case such as
where
defendant
is the only person who could
Appeals,
United States Court
present
to contradict
evidence
State’s
Circuit.
Sixth
case, a comment that evidence is “uncontra-
24, 1982.
Argued May
impermissible.
dicted” is
United States v.
Aug.
Decided
1982.
Robinson,
1981);
1. After the two remarks
that Jean Hudson is not
the abso-
and after the ineffective curative instruction
lute truth
this case. You have a decision
court,
Hudson,
the trial
at the conclusion
say,
to make. You can
Jean
we
of his rebuttal stated as follows:
telling
don’t believe
are
truth.
you.
Everything, every
There is
to contradict
But we
bit of evidence went
just
you.
support
going
hap-
are
to believe
what Jean Hudson said had
No,
pened.
gone
no evidence has
to show
properly notes
ty
are that had
implications of Lockett
the context
analysis”
“a
requires
probing
Supreme
ease been before the
facts in this
effect
comment,
likely
including
viola-
Lockett,
Amendment
Court in
a Fifth
States
United
instructions.
curative
tion would have been found.
1188,
(6th Cir.),
1197
Robinson, 651 F.2d
v.
351,
denied,
875,
cert.
454
102 S.Ct.
in Jackson
U.S.
Finally,
point
I would
out that
(1981).
2781,
183
307,
61 70 L.Ed.2d
Virginia,
v.
443 U.S.
S.Ct.
were
jurors
reveals that three
errs, hоwever,
holding
jury selection
majority
above state-
after the
replaced
excused and
is controlled
Lock-
that the instant case
2954,
made.
Ohio,
ment was
ett
(1978). Lockett held