*1
respond personally
have to
should not
[they]
for
Counsel
Virginia.1
Court of
damages.”
Spellman,
petition
Skinner
dismissal of
for
sought
state
1973).
Eslinger v.
(4
well in ad-
540 Cir.
See
of exhaustion
F.2d
ground
upon
were
(4
1973).
their motions
Thomas,
trial but
F.2d 225 Cir.
vance of the
court.
the district
by
denied
summarily
77-1471,
judg-
in
Accordingly,
No.
at the
the issue
they again pressed
When
Muncy
against
the district court
ments of
their
trial,
rejected
the court
close
the case re-
Spann are reversed and
and
it as a fait
motion,
treating
juncture
at that
judg-
to enter
manded with instructions
was no waiver
there
accompli. Since
In No.
in favor of the defendants.
ment
which would
any
nor
circumstances
state
77-1472,
of the district court
judgment
re-
the exhaustion
dispense
or
with
excuse
with
and the case remanded
is reversed
clearly
action was
the court’s
quirement,
for habe-
petition
to dismiss the
instructions
judg-
and,
we reverse
accordingly,
error
77-1473,
judgment
corpus.
as
No.
to dismiss
remand with directions
ment and
the district court is affirmed.
Rodriguez,
U.S.
petition.
Preiser v.
77-1471,
and RE-
No.
REVERSED
(1973);
1827,
officer, immune from such liabili- was also Callion, (9 433 F.2d Burkes v.
ty. See 1970). Cir. charges
Coming, finally, court the district against Muncy Spann, liability on any relieved them from properly Superintendent E. C. et WATKINS record shows that the medical claim for the al., Appellants, guilty these defendants were necessary deliberate indifference Gamble, 429 charge. such a Estelle v. U.S. FOSTER, Jr., Appellee. Willie 50 L.Ed.2d We S.Ct. No. 77-1014. however, that opinion, are further of the damages there was no basis for an award Appeals, Court of United States charge defendants on the against these Fourth Circuit. right of his to coun they deprived Douglas 3,May Argued to the courts. The district sel access 26, 1978. either of these de Decided Jan. court did not find that malice, and the any fendants acted with they merely followed
record shows that temporary in procedures prescribed Center. mates of the Correctional Since “acting in a reasonable the defendants was standard good faith reliance on what Virginia prisons, in the operating procedure Douglas nothing charged spondent. further and the Douglas with a viola- had also been judge petition state sub- probation became moot when the and had filed a matter tion probation sequently challenging validity pro- violation dismissed the of that state court charge. ceeding. petition returned to him request correct re- with the that he name the *2 Leonhart, Baltimore, Md., and
Valerie K. Henrie, Year Law K. Third Student Brigid Millemann, Elder, Michael A. (Michael S. Branda, Clinic, Legal Joyce R. Services Md., Baltimore, brief), appellee. for on RUSSELL, WIDENER and Before MOORE,* Judges. Circuit
MOORE, Judge: Circuit February Willie Foster was On court for tried in a North Carolina state degree burglary. prosecution’s first enlarge- only photographic evidence was Foster’s, matching fingerprint ment of a flowerpot burglarized in the found on a set, player, record house. The television cash, missing from the house, identifi- were never recovered. No Foster. Foster and his cation was made of that he was at home on wife both testified alleged burglary. On night cross-examination, asked whether he questions, in detailed involving had committed breaking people’s into homes. Foster de- committing any jury of them. The nied and he was sentenced guilty found Foster imprisonment. to life the cross-examination as to We hold that highly prejudicial acts was and de- fair prived Accordingly, trial. judgment, we affirm the district court’s corpus a writ of habeas and set- granting conviction. ting aside Foster’s
I. morning September
Early Harley the home of James Davis was burglarized. paint As a result of a fresh room, he his son job in Mr. Davis’s son’s Sep- gone sleep evening on the daughter’s bed- tember 4 in Mr. Davis’s Hodulik, Atty., daughter Patricia B. Associate Ra- Davis and her went room. Mrs. leigh, (Rufus Edmisten, N. Atty. approx- C. L. Gen. in the master bedroom. At sleep C., C., brief), m., Raleigh, appel- N. N. Mrs. Davis awoke to find imately 1:50 a. lants. hands on leaning a man over her with his by desig Circuit, sitting MOORE, Judge Second P. United States for the Circuit * LEONARD
nation. nine returned indictments grand jury A identification leg. her arm and able Mrs. Davis has been the intruder that January Foster on against man”, that he “looked like a give the two following May, Foster was tried on jacket a dark with two wearing he was relating to the September indictments sleeves, he and that stripes white down' jury home. The incident the Davis or a over his wearing stocking a mask *3 degree burglary, guilty Davis of first found awakening, Davis called Upon head. Mrs. the assault with intent acquitted but him on then The for her husband and screamed. charge. jury’s recommenda- rape On the her the face and unidentified man struck tion, a life sentence. Fos- given Foster was Davis, Mr. awakened ran from her room. reversed, however, by ter’s conviction was intruder, scream, the searched for the on of North Supreme the Court Carolina The then no- but found no one. Davises hearsay ground prejudicial the that certain set, play- record ticed that television the the from Foster on er, testimony Davis’s wallet had elicited money and some from Mr. been of the missing. all The screen on one Foster, were cross-examination. State bedroom, which in the son’s open windows N.C. S.E.2d removed. empty evening, was that had been February Foster was retried on police finger- and dusted for arrived to the and Mrs. Davis each testified Mr. They were prints open around the window. events, 5th as related above. September area, any prints unable take from addition, Mrs. testified that she did Davis prints but lifted three from successfully that, to know Foster and her knowl- found in the plastic flowerpot which was had in her home. edge, he never been She room, living although middle of it had the flowerpot the which stated also that from room, next to the been the corner of always lifted fingerprints was set, gone television when the Davises had of the kept living room. rest bed. testimony case consisted State’s was to match a prints One found fingerprint police three officers and file as fingerprint police had on which on the relating fingerprint all to the expert, Foster, belonging According- to Willie Jr.1 on 3" X 5" card 22,1971, flowerpot. original arrested. ly, on October Foster was on which Foster was Two the warrants had print alleged which the be Foster’s inci- arrested to the September related to the lost placed first been had been from e., degree burglary dent —i. first trial, enlargement photographic and thus a Davis, in- James and assault with Harley finger- print was introduced.2 However, tent Mrs. Davis. rape enlarged expert print testified was also on the basis of seven arrested taken from Foster print print matched a sepa- other warrants which related to seven his arrest.3 after burglary rate housebreak- incidents of and explanation no The defense offered ing which be- had occurred in Charlotte However, year. fingerprint flowerpot. tween and February October of on Foster, explained why petition it is in issue on It has never been who habeas and thus record, previous finger- appeal. had no criminal had his this prints police department. on file at the Although only fingerprint taken from Fos- argued appeal 2. Foster on to the North Caroli- evi- introduced into ter after arrest was Supreme photographic na en- Court dence, in his one of officers also referred largement not have admitted be- should been Foster’s, testimony fingerprint, allegedly to the pho- cause it not been that the had established already file. The North Carolina which was tograph represented print in fact testimony Supreme was Court held flowerpot Davis been lifted from the excluded, hearsay but and have been should Court, home. The North Carolina was harmless. concluded that the error extensively, discussing the issue held that after raise this at 793-94. Foster did not S.E.2d photograph properly admitted. also, it, petition, and issue in his habeas thus Foster, 789-93 S.E.2d N.C. appeal. not in issue on this did not raise issue in his Foster testified that he going had never been in into the front door reaching up the Davis home and that he had never and unscrewing your fingers with a light- owned a mask jacket or a dark with white ceiling? bulb in the stripes. black, a 34-year old with no Objection. MR. HICKS: record, criminal testified that he had COURT: Overruled. lived in Charlotte for 25 years, that he DEFENDANT’S EXCEPTION NO. 24 worked for the Triple A Heating Cool- Q. Did you you not? ing Quail Company and Hollow Country No, A. you What mean ‘did F? Club, and yard that he also did work for didn’t. various people in Henry Charlotte. Mrs. Q. I will you you ask if didn’t break Wilson testified that Foster had done yard into the residence of Lonnie Bell Wallace work and heavy indoor work for her for at 217 South Turner Street? How far is two or years. three She stated that his *4 Turner South Street from there reputation on Cen- in the community was excellent ter that he Street? was considered an honest and conscientious worker. Foster’s wife testi- Objection. MR. HICKS: fied that her husband was at home in bed A. I you. couldn’t tell with her during the hours which the Q. I you will ask if you didn’t break Davis home was allegedly burglarized. She into Lonnie Bell Wallace’s house on Feb- testified further that she had never seen a 20, 1971, ruary between 6:30 and 11:00 mask or a jacket dark with white at stripes o’clock and by breaking out the center house, that she and her husband had glass window in the front door? never set, owned a television and that her MR. Objection. HICKS: husband did bring one Septem- home on COURT: Overruled. 5, ber DEFENDANT’S EXCEPTION NO. 25 We come now to portion of the trial A. Sure didn’t. which is directly at issue on appeal. Q. I will you you ask if did not break During his cross-examination of into the residence of Teretha at Phillips prosecutor asked Foster whether he had Roslyn 2224 Avenue on the May, 23rd of prior committed six acts of breaking into 1971, by prying open her kitchen window people’s homes. The prosecutor described and breaking out the window pane? each detail, act in some and Foster denied Objection. MR. involvement in HICKS: any of them: “Q. Now, COURT: I will ask Overruled. you if on October 20, 19, me, of excuse August 3, of 1971 DEFENDANT’S EXCEPTION NO. 26 if you didn’t break into Martha W. Pitts’ A. Sure didn’t. house . Q. I will you ask if on the 17th of MR. Objection. HICKS: 1971, September, you didn’t break into Q. At 2416 Rozzelles Ferry Road here the home of Shirley Torrence at 514 Hon- in the City? eywood, Apartment 3,No. by taking the MR. Objection. HICKS: screen off the window and breaking out No,
A. I sure front didn’t. window? object MR. question HICKS: to a MR. Objection. like HICKS: this. COURT: Overruled. Q. you Did touch anything around the DEFENDANT’S EXCEPTION 27 NO.
screen window there? A. Sure didn’t. A. I wasn’t there. Q. And I will ask if you you on the ****** 25th day July of 1971 you didn’t break into the residence of Roy Armstrong Lee Q. I will ask you you if didn’t break in at 201 South Turner Avenue? the residence of James at 312 Sinclair 11, Center Street on 1971, October by MR. Objection. HICKS: II. Overruled. COURT: DEFENDANT’S EXCEPTION NO. appeal is raised on this issue Foster A. didn’t. as Sure whether the cross-examination him a deprived to six Turner Q. Do know where South you fair trial. Avenue is? Objection.
MR. HICKS: validity does contest COURT: Overruled. evidentiary rule Carolina North DEFENDANT’S EXCEPTION NO. aof wit permits cross-examination purpose ness acts for don’t.” Record A. Sure State Sum- Neal, v. 222 N.C. 546, State impeachment. mary 74-77. Williams, v. 911, State (1943); 23 S.E.2d by The six acts described 663, 675, 185 279 N.C. S.E.2d charged were the acts Foster was with com- Gainey, (1971); N.C. mitting the indictments which The North Carolina S.E.2d against January been returned him on placed two limitations on this courts have At the time of Foster’s cross-exami- be (1) questioning must general rule: nation, of these six indictments had one Mack, faith, 282 N.C. in- already remaining been dismissed. The (1972); (2) the cross-ex S.E.2d all dismissed against dictments the witness’s answer— aminer is bound long for insufficient evidence not thereaft- extrinsic evidence in rebut he cannot offer *5 er. Cross, 200 S.E.2d State tal. N.C. was jury guilty, found Foster and he imprisonment. to life again sentenced is in limitation not issue The latter of North Carolina affirmed Supreme Court evidence prosecutor here. The offered no conviction, justices dissenting the with two answers to.each negative to rebut Foster’s issue. acts on the is questions. the contested It the six N.C. S.E.2d question. is in good faith which prosecutor’s se pro August filed On Foster a [good concede that “the Appellants faith] petition the corpus for a writ of habeas in that insuring is to the requirement directed United States District Court for the West upon factual ma questions asked are based ern District of North Carolina. A further Appellants’ Although Brief at terial”. petition court-ap later was filed Foster’s questions upon alleged the were based pointed counsel. In an order dated November returned, as to had been which indictments 8, 1976, Judge recognized McMillan that in his dissent Chief Justice Bobbitt noted habeas not “[o]rdinarily corpus federal does of the North Caro opinion from the second cross-examination,” lie to correct error in lina Supreme Court: but asserted that in this instance: “To al delay notwithstand- prosecution “The prosecutor the ask about questions low to repeated requests ing defendant’s crimes, unsup alleged completely other hearings that the suggests preliminary evidence, ported by fact or in the detail insufficient, to show State’s evidence here, a which was allowed makes shambles crimes was com- any alleged that of these deprives of fair trial and the defendant elected by defendant. mitted process Judge due of law”. McMillan con case which rested proceed only a cluded that “Foster is entitled a new fingerprint, presumably solely single on a at no with refer trial which examination at 200 S.E.2d strongest case.” previous wrongful ence to the six He added: Watkins, acts should be allowed”. Foster v. asking questions gave of these the 53, 55 “The F.Supp. (W.D.N.C.1976). Accord had the counsel impression that State’s
ingly, Judge
granted
McMillan
writ
facts sufficient
evidential
knowledge of
corpus
habeas
and set aside Foster’s convic
The record
these insinuations.
support
tion.
evi-
nothing
said was itself
negate
tends
rather than to
knowledge.”
that he
such
dence.
view
had
at 799.4
S.E.2d
prop-
evidence
could
jury
which
guilt
issue
erly
Chief Justice Bobbitt’s conclusion that
consider on the
of Foster’s
Appellants
the mere
that
had been was slim.6
that “the
fact
indictments
concede
quantity
petitioner’s
to support
returned did mean that
cross-exami-
great”.
nation
Appellants’
had
factual basis was soon borne
conviction was not
Shortly
out.
after the North Carolina Su- Brief at 16. The District
said:
Court
preme
decision,
Court issued its
all of
“It must be borne in mind that
pending against
indictments still
upon
prosecution’s
depended
case
a num-
were dismissed for a lack of sufficient evi-
ber of extended inferences from one lim-
dence.
What Chief Justice Bobbitt did
piece of
ited
evidence—second-hand
indictments,
realize5 was that one of the
questionable
single
evidence of a
latent
committing
which
charged Foster with
fingerprint
pot.
on
From the
a flower
act on
one
was
questions
fingerprint
second-hand evidence that a
based,
already
had
been dismissed
pot,
jury
was found on a flower
the trial. This fact alone sheds doubt on
asked to draw inferences
(a)
the prosecutor’s
faith.
photograph
pho-
was in
they saw
fact
tograph
original
(b)
fingerprint;
not,
The prosecutor concededly could
fact
that this was in
fin-
defendant’s
not,
and did
offer any extrinsic evidence
it
gerprint; (c)
placed upon
had been
committed the six acts.
pot
the flower
pot
while the flower
was
However,
alone,
questions
an
although
house;
prosecuting
(d)
witness’s
negative by Foster,
swered in the
must
it had
placed upon
been
the flower
have left
impression
an indelible
at
pot
the time of the
rather
crime
than
jury.
minds of the
Foster’s entire defense
time; (e)
other
it
some
had been
rested
credibility,
on his
thus
prose
placed upon
pot by
the flower
one who
cutor’s attack on
credibility
was crit
then
and there
perpetrating
bur-
ical.
prosecutor's
Foster’s denial of the
in
(f)
glary;
person
that the
then and there
sinuations in theory should have left his
*6
perpetrating the
the de-
burglary was
credibility intact but
actuality
in
could
fendant;
(g)
the
that
defendant at such
erase the blemish on his character which
in
necessary
time
fact did have the
inten-
had been
in
juror’s
Aggra
left
each
mind.
tion mental state
to
necessary
support
vating
highly
the
prejudicial nature of the
enough
conviction of a crime serious
to
questions was the
judge
fact that the trial
justify taking
F.Supp.
his life.” 423
at 55
never
the
gave
jury any limiting instruc
(emphasis
original).
in the
told
they
only
tions—never
them that
could
consider the exchange
only
between the
We can
add that no
prosecu
identification of
tor
made,
and Foster on the issue of
Foster was ever
Foster’s
and the fruits of the
credibility and never reminded them that
crime were never recovered.
majority
Supreme
improper
The
of
preju-
the North Carolina
tor’s
so
cross-examination was
application
deprive
Court did not discuss the
the
of
dicial
Foster
trial.
of a fair
“The
“prior
rule
acts”
to the
of
question
possi-
facts
Foster’s case.
is whether there is a reasonable
They merely
validity
reaffirmed the
rule
bility
[improper
of the
that
the
cross-examination]
request
they
and hence denied Foster’s
that
might
.
the
have contributed to
convic-
repudiate
reexamine and
it.
S.E.2d at 794.
Connecticut,
85, 86-87,
Fahy
tion.”
v.
U.S.
229, 230,
84 S.Ct.
scarce evidence majority impermissi- the stating of that Connecticut, Fahy v. possibility”, sonable the considering weight the evidence bly only Foster was tried not note that supra passing I note in despite its disavowal. evidence, but also on the detailed has a federal con- this court affirmed prosecutor’s ques- recounted “facts” guilt only viction in which the evidence limiting by instructions tions, with no finger- the accused’s presence was the his constitu- deprived Foster judge, the crime. United print near the scene of Accordingly, we right to a fair trial. tional (4th Bryant, 454 F.2d Cir. States v. grant- judgment Court’s the District affirm 1972). weight it As considers setting and corpus a writ of habeas ing here, majority applies a more appellants If aside Foster’s conviction. stringent corpus standard in a habeas trial, with no give new wish in a crimi- applied review than was federal acts, they reference to the six Bryant. Exactly in reverse appeal nal forthwith, release him. do or else should so should be true. for seven months be- prison Foster was in themselves, Turning questions trial, in prison has now been fore first majority prosecutor’s good attacks the faith and years, for a total of almost has still them. teeth of asking contrary In the the fair trial to which the not received by decision North Carolina him. Amendment entitles Fourteenth Court,1 despite 2254(d), 28 U.S.C. § is AFFIRMED. judgment provides which the North Carolina presumed court’s “shall be determination WIDENER, Judge, dissenting: Circuit correct,” be majority finds court, affirms the district majority failed to act faith. questioning finding prosecutor’s necessarily seems to sub- majority base prejudicial deprived “was highly jective solely determination of bad faith respectfully a fair dissent. trial.” upon for “lack of suffi- the State’s dismissal ordinarily Federal courts are not con- cient evidence” of the indictments on sufficiency p. cerned with the of evidence premised.2 questions only However, “The consti- the sole in the record for corpus petitions. habeas petitioner’s following is whether is the statement question tutional ” apparently in its cases were answer: “these evidence at all.’ upon ‘any conviction rests for lack of sufficient evidence.” untried (4th Freeman 550 F.2d Slayton, read, passage shows Fairly 1976), Cir. cert. den. U.S. S.Ct. authorities lacked sufficient ev- prosecuting (1977), quoting L.Ed.2d 566 Wil- *7 convict of crimes idence to (4th liams v. 414 776 Peyton, F.2d Cir. indictments; charged in the dismissed Thus, 1969). “scarcity the discussion of the is, guilt beyond his a establishing evidence evidence,” p. of the 506 is immaterial. reasonable doubt. Viewing scarcity “the of the evidence as opinion relevant of A prose- reading majority to the issue whether fair of the that, circuit, a matter may only cutor’s cross-examination so be in this as improper was not, prose- agree, majority which I do that the notes that the North were I to 1. Carolina application unconstitutionally questioned Supreme not discuss cutor Court prior opinion, p. particular charged of the acts rule its in that indict- 506 n. about the acts Nevertheless, ment, any to unless we are reverse error have been I would find to highest interpre- Chap- beyond North Carolina’s court on reasonable doubt. harmless a admittedly California, 824, of State tation an constitutional U.S. S.Ct. man v. law, agree disagree- we are bound to State positive I am in L.Ed.2d 705 followed its own decisions and p. Court majority on of the ment with the conclusion requisite good found the faith. indictment, fact that “This to that as alone, prosecutor’s doubt on the sheds majority states, 2. As the p. one of the (Italics added). faith.” prior was to trial. Even indictments dismissed law, purpose showing for the of and in- prior impeach- motive of constitutional acts tent. prosecu- permissible ment is when the prior possesses proving
tor evidence acts cases, In of the face these I do see For, a doubt. if there beyond reasonable forbidden, how a court be under may such applied, should be a lesser standard as prohibition, to permit constitutional or preponderance probable of the evidence questioning of a defendant prior about acts cause,3 permit constitutionally prosecu- a impeachment purposes, for while a federal prior acts, tor question an accused as to court may the same circuit admit proof same either going the decision of the district court must of be innocence, guilt or or as to motive and permits reversed. The record no conclusion intent, ingredient guilt, necessary a of except lacked evidence to even explain government’s actions. a beyond indictments reasona- standard, apply think we a double State and doubt, ble any and in the absence of other federal, application and even in the of the evidence, prisoner must be taken to standard, apply wrong- double I think we it have proof. failed meet burden of ly, of for error constitutional dimension to circuit, Finally, cases, this in many has set necessarily aside State conviction approved the of admission evidence of ought to be grievous merely more than acts as evidence in prosecu- federal criminal admissibility evidence, error in the of all Woods, In United States tions. F.2d necessary judgment to vacate a (4th 1973), Cir. evidence of conviction in the federal courts. was admitted as proof substantive I would reverse. offense, although there were neither indict- ments nor convictions account of such Tibbetts, In United States v.
acts.
565 F.2d
(4th
1977),
Cir.
this
approved
court
admission
a December
telephone
threat,
of a
call
bomb
defend-
indicted,
ant
was
as evidence in a
LIBERTY MUTUAL INSURANCE
charge making
a bomb threat on May
COMPANY, a Massachusetts
1976, for which the defendant was indicted
Corporation, Appellee,
and tried. This
approved
court
admission
evidence,
proof
not as
of the substan-
Teddy MUELLER, Virginia resident,
E.
offense,
tive
intent,
nor even to show
but
Mueller,
and Ronald Dean
Paul
J.
“to account for the surveillance and as ex-
Puckett, Administrator of the Estate of
planation of
government
how the
discover-
Caviness, Deceased, Appel-
H.
Clarence
ed
Unit-
suspects
type
crime.”
lants.
ed
v. Tyler,
States
(4th
Brewster
to be an
con-
Tyler,
vict.
the evidence was received
not,
course,
3. An indictment
admissible
jailed
If Foster could be
because
guilt.
unques-
But the indictments
indictment,
I do not think it
provided
tionably
probable
any pre-
cause
questioned
unfair that he be
about
the same
trial
incarceration
see Gerstein v.
permitted by
acts if
State law.
Pugh,
420 U.S.
95 S.Ct.