Harry Soap v. Charlie D. Carter, and the Attorney General of Oklahoma

632 F.2d 872

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 4, 1980
• Docket: 79-1125
• Status: Published

Opinions

BREITENSTEIN, Circuit Judge.

Petitioner-appellant sought federal habeas corpus relief from his state court conviction of first degree manslaughter after a jury trial. The conviction was affirmed by the Oklahoma Court of Criminal Appeals in an unpublished opinion. Petitioner then pursued state post-conviction remedies. A state district court denied relief and its action was affirmed by the Oklahoma Court of Criminal Appeals. Having exhausted his state remedies, petitioner then filed a federal habeas corpus action in the Eastern District of Oklahoma. He appeals from an adverse ruling of that court. We granted a certificate of probable cause and appointed counsel for him. We affirm.

Petitioner was charged with the September, 1972, murder of Robert Duncan. Petitioner and the decedent were both Cherokee Indians. The homicide occurred at the home of Harry Duncan, a 61-year old Cherokee and a relative of Robert Duncan. Walter Stepp and Robert Duncan came to Harry Duncan’s home in Robert Duncan’s automobile. Stepp entered the home and saw petitioner and Harry Duncan talking. Petitioner left shortly thereafter. Harry Duncan and Walter Stepp stayed in the house. Both of them testified that they heard no altercations, shots or other unusual noises during the time that petitioner and Robert Duncan were outside. In a few minutes Harry and Stepp went outside and saw Robert Duncan on the ground.

At the preliminary hearing Harry testified that he saw petitioner and Robert fighting. At the trial he said that he did not. An ax was found near Robert’s body. At the trial Harry testified through an interpreter that: “When he (petitioner) got through using it (the ax), he put it under the floor. He didn’t see him use it.” At a post-trial hearing Harry testified that he never saw petitioner with an ax in his hand or touch an ax during the night in question. The officers on arrival found a bloody ax partly concealed under a porch floor. The medical examiner said that the deceased had received blows on each side of the head or neck and had bled to death. He also said that the ax could have been used to strike the blows. No usable fingerprints were found on the ax.

Stepp testified that he saw petitioner standing next to someone lying on the ground. Petitioner chased Stepp away saying that “I am going to do the same thing to you.” Harry said that he saw a gun near the body and later denied that he did. Harry was afraid of petitioner, got a rifle, and shot to frighten petitioner. Petitioner was wounded and ran. About 15 minutes later, he encountered his brother, Bobby Soap, near the Harry Duncan home and his brother took him to a hospital. Bobby said that petitioner objected to being taken to the hospital.

The medical examiner said that decedent lived for about 15 minutes after the blows, and that death had occurred about 2:30 a. m. The witnesses differed greatly in the timing of various events that occurred during the evening. Bobby Soap fixed the time of his encounter with petitioner at 1:00-1:30 a. m. A neighbor testified that she saw petitioner at her home, not far from Harry Duncan’s house about 1:30 a. m. and heard him again at her home about 20 minutes later. Petitioner denied killing Bob Duncan and said that all of the group were alive on the porch when he was shot and left. He said that he did not know who shot him.

This appeal presents three issues: (1) constitutional sufficiency of the evidence, (2) errors in translation resulting in denial of due process and right of confrontation, and (3) prosecutorial misconduct.

The four people at the Harry Duncan home were Harry, the petitioner, the decedent, and Walter Stepp. Harry and petitioner did not speak English and testified through an interpreter. Stepp did not. At the preliminary hearing Georgia Kent was used as an interpreter with the approval of defense counsel who stipulated that she was a neutral party. At the trial the Reverend Scott Bread was used as an interpreter without any objection and he acted as an interpreter for the testimony of government witness Harry Duncan and of the petitioner.

Petitioner’s motion for a new trial asserted mistranslation of the testimony of Harry. A sister of the petitioner, Inola Soap, who spoke both Cherokee and English, testified that she was present at the trial and that interpreter Bread did not accurately translate the answers of Harry. She also said that after the trial Harry had told her that he did not say what Bread translated him as saying. The prosecution then called Harry and he denied the conversation with Inola Soap.

The question of the mistranslation was considered by the Oklahoma Court of Criminal Appeals. It pointed out that Harry’s testimony at the best was confusing and contradictory and that his statement of the handling of the ax by petitioner was impeached by a contrary statement which Harry had made at the preliminary examination. The federal habeas judge treated the objections to the interpreter’s translations as procedural errors raising no constitutional questions proper for consideration in federal habeas proceedings arising out of a state court criminal conviction.

The Sixth Amendment confrontation claim relates to witnesses Harry Duncan and Walter Stepp. Harry testified through an interpreter at both the preliminary hearing and the trial. Stepp testified at the pre-trial hearing, apparently without the use of an interpreter, and was thoroughly cross-examined. At the trial the prosecution announced that the sheriff’s office had made an extensive search for Stepp and had been unable to find him to serve a subpoena requiring his appearance at the trial. By stipulation the transcript of the examination and cross-examination of Stepp at the preliminary hearing was read to the jury. This is not a case like Barber v. Page, 390 U.S. 719, 724, 88 S.Ct. 1318, 1321, 20 L.Ed.2d 255, where the prospective witness was in federal custody and the prosecution made no effort to have the witness available at the trial. Rather it is a case where the witness was actually unavailable. See Id. at 724-726, 88 S.Ct. at 1321-1322. Additionally, the defense consented to the use of the preliminary hearing transcript. Petitioner may not now invoke the Confrontation Clause.

Petitioner’s claim of mistranslation raises no confrontation issue. At the preliminary hearing, and at the trial, the defense did not question the qualifications of the interpreters and made no objection to their use. After conviction the defense claimed newly discovered evidence relating to mistranslation of part of Harry Duncan’s testimony. Conflicting evidence was then presented and rejected by the trial court. We agree with the federal habeas court that rulings on the appointment and qualifications of interpreters do not reach constitutional proportions. See Fairbanks v. Cowan, 6 Cir., 551 F.2d 97, 99. Whatever problems there may be with the testimony of Harry Duncan go to the sufficiency of the evidence.

The 1979 decision of the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, considered the principles which must guide a federal habeas court in considering the sufficiency of the evidence to support a state court conviction. The Court said, Id. at 324, 99 S.Ct. at 2792:

“We hold that in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254-if the settled procedural prerequisites for such a claim have otherwise been satisfied-the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

The first question is whether the announced principle should be applied retrospectively. The decision of the federal habeas court was made December 29,1978, six months before the Jackson decision.

In Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601, the Court was confronted with the retrospective application of its decision relating to the admissibility of illegally obtained evidence. The issue arose in a federal habeas action to review a state conviction. The Court declined to apply the decision retrospectively. A number of later decisions have considered the problem. See Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388; Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404; Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306; and Harlin v. Missouri, 439 U.S. 459, 99 S.Ct. 709, 58 L.Ed.2d 733. Whatever the rule on retrospectivity may be, we believe that it applies both to direct review of criminal convictions and to a federal habeas attack on a state court conviction. See Williams, 401 U.S. at 656, 91 S.Ct. at 1154.

In Jackson the court rejected the “no evidence” criterion of Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, and held that a federal habeas court reviewing a state court conviction, must consider whether there is sufficient evidence to justify a rational finder of fact to find guilt beyond a reasonable doubt. The principle relates to the standard of review, not to the commission of the substantive offense. Without trying to reconcile the many differences of opinion on retrospectivity, we believe that the fair and best rule is that Jackson applies to all federal habeas proceedings to review state convictions when the federal habeas was not finally determined before Jackson. In our review of the instant case we apply Jackson.

Four Cherokee Indians were involved in the events with which we are concerned. The record indicates the probable drinking of alcohol. Harry Duncan and petitioner were in the house when the decedent and Stepp arrived. Stepp went in the house while decedent was still in the car. Petitioner left the house. A few minutes later Harry and Stepp went outside. They found petitioner standing over a body. No evidence showed the presence of any one else at the time. Stepp testified that petitioner threatened him and that he ran. Harry Duncan fired a shot. Petitioner was wounded. The evidence of the examining doctor, and the surrounding facts, justify a reasonable inference that decedent had been killed by two blows of the ax.

Testifying in his own behalf, petitioner said that he was at Harry’s home and that Stepp and decedent drove up. He denied any knowledge of the ax, any assault on the decedent, and any threat to Stepp. He made no claim that any person, other than the four mentioned, was present.

The Oklahoma Court of Criminal Appeals said that the question was “whether there exists competent evidence from which the jury could reasonably have found the defendant guilty of First Degree Manslaughter.” This is essentially the Jackson test. The Oklahoma court held there was such competent evidence. The federal habeas court referred to an Oklahoma decision, Edwards v. State, Okl.Cr., 476 P.2d 378, holding that the function of a court reviewing a criminal conviction is to ascertain “whether there is a basis, in evidence, on which the jury can reasonably conclude that the accused is guilty as charged." It held that a review of the trial transcript showed that the state submitted ample evidence to sustain the verdict.

The federal habeas court, acting before Jackson, did not state the governing criterion in the language of Jackson but it recognized that the evidence must suffice to justify a reasonable conclusion by the jury. From our review of the trial transcripts we are convinced that a rational trier of the facts could have found guilt beyond a reasonable doubt. The requirements of the Jackson decision are satisfied.

The original brief of the petitioner did not mention prosecutorial misconduct. The point was raised in a supplemental brief and oral argument. We disapprove of the practice of asserting new issues in reply or supplemental briefs, but in the circumstances of this case we shall consider the issue. Petitioner admits that no contemporaneous objections, as required by Oklahoma law, were made to the closing arguments of the prosecutor. In Fay v. Noia, 372 U.S. 391, 438-439, 83 S.Ct. 822, 848-849, 9 L.Ed.2d 837, the Court held that the contemporaneous objection rule did not apply when a defendant had deliberately bypassed orderly state court procedures or had not intentionally relinquished a known right or privilege. In Wainwright v. Sykes, 433 U.S. 72, 89, 97 S.Ct. 2497, 2507, 53 L.Ed.2d 594, the Court said that the Fay v. Noia rule encourages “sandbagging” on the part of defense lawyers who would gamble on the outcome of the state case with intent to raise constitutional claims in a federal habeas court. The Court went on to say, Id. at 90, 97 S.Ct. at 2508:

“The failure of the federal habeas courts generally to require compliance with a contemporaneous-objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. * * Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification.”

Petitioner has advanced no explanation of his failure to object at the trial or of his failure to raise prosecutorial misconduct in this court until he filed his reply brief. Federal courts have no supervisory powers over state trial proceedings. To present a federal constitutional question “[p]rosecutorial argument must be so egregious as to render the entire trial fundamentally unfair.” Cook v. Bordenkircher, 6 Cir., 602 F.2d 117, 119. In the case at bar they were not of that character. In his brief petitioner says only that “[t]he prosecutor also came dangerously close to inflaming the passion and prejudice of the jury in referring to the defendant’s Cherokee heritage and alcoholic lifestyle.” Reply Br. p. 5. Close is not enough. The arguments must be considered in the context of the entire trial. Those present at the Duncan home were all Cherokees and had been drinking. The claim of prejudice because of racial statements, emphasizes, out of all proportion, a minor incident in the trial to which no objection was made.

A more serious objection goes to the statement of the prosecutor in closing argument that:

“I have no hesitancy at all to tell you that in my sincere and honest opinion, that this evidence does show beyond a reasonable doubt, that this man killed him, and I am convinced of that just as much as I am convinced that I am standing here and talking to you.”

We have consistently disapproved the expression by a prosecutor of his personal opinion of guilt. See e. g. United States v. Latimer, 10 Cir., 511 F.2d 498, 503, and United States v. Ludwig, 10 Cir., 508 F.2d 140, 143. Those were federal cases and here we have federal habeas review of a state conviction. Donnelly v. DeChristoforo, 416 U.S. 637, 639, 94 S.Ct. 1868, 1869, 40 L.Ed.2d 431, says that the question in such circumstances is “whether the remarks, in the context of the entire trial, were sufficiently prejudicial to violate respondent’s due process rights.” One of the attacked remarks in Donnelly was the prosecutor’s expression of his personal opinion of guilt. The Supreme Court reversed the federal appeals court reversal of a trial judge’s denial of habeas. In so doing the Court said, Id. at 647, 94 S.Ct. at 1873:

“The result reached by the Court of Appeals in this case leaves virtually meaningless the distinction between ordinary trial error of a prosecutor and that sort of egregious misconduct held in Miller and Brady, supra, to amount to a denial of constitutional due process.”

In Miller v. Pate, 386 U.S. 1, 6-7, 87 S.Ct. 785, 787-788, 17 L.Ed.2d 690, the prosecution knowingly used false evidence. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, the prosecution withheld evidence. The prosecutor’s expression of personal belief was reprehensible and should not have been made, but there was no contemporaneous objection. At the most the statement of the prosecutor was a minor trial error which does not rise to the level of a constitutional deprivation of due process. See Hayton v. Egeler, 6 Cir., 555 F.2d 599, 604. Viewing the record as a whole, including the arguments, we are convinced that no constitutional right of the petitioner was violated.

Affirmed.