Johnny Ray Bagby v. Dewey Sowders, Warden, Northpoint Training Center

894 F.2d 792, 1990 U.S. App. LEXIS 484, 1990 WL 2284

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 17, 1990
• Docket: 87-5286
• Status: Published

Opinions

ALAN E. NORRIS, Circuit Judge.

Johnny Ray Bagby, a state prisoner, appealed from a district court order dismissing his petition for a writ of habeas corpus. A divided panel of this court affirmed the district court’s order in part, and reversed it in part. Bagby v. Sowders, 853 F.2d 1340 (6th Cir.1988). The panel remanded the case to the district court with instructions to grant the writ unless the State of Kentucky granted Bagby a new trial within a reasonable time. A majority of the judges of this court in regular active service voted to rehear the case en banc. Fed. R.App.P. 35(a); Bagby v. Sowders, 866 F.2d 824 (1988). Accordingly, the panel’s decision has been vacated and, although we reconsider all issues raised on appeal (6th Cir.R. 14), we are primarily concerned with whether Bagby’s claim that he was entitled to a jury instruction on a lesser included offense was cognizable on federal habeas corpus review of his state trial. For the reasons which follow, we affirm the order of the district court denying Bagby’s petition for a writ of habeas corpus.

I.

On June 7, 1983, a grand jury indictment was returned charging Bagby with the offenses of first-degree rape and second-degree burglary, and with being a second-degree persistent felony offender. He was found guilty of the charges following a jury trial. His convictions were affirmed by the Kentucky Supreme Court.

Bagby then filed a pro se petition for a writ of habeas corpus in the United States District Court for the Western District of Kentucky, in which he advanced the same grounds for relief which had been urged in the Kentucky Supreme Court as the basis for reversal of his convictions. This court appointed counsel for Bagby’s appeal from the district court’s denial of his petition.

Counsel raised the following issues on appeal: (1) whether his right to due process under the Fourteenth Amendment to the United States Constitution was violated when the state court refused to instruct the jury on the lesser included offense of first-degree sexual abuse; (2) whether his privilege against self-incrimination was violated when the state court allowed comments at trial concerning his failure to testify; and (3) whether due process was violated when the state court permitted the prosecuting witness to refer to petitioner’s photograph in a “mug book.”

II.

When Bagby appealed to the Kentucky Supreme Court, he contended that the trial court denied him due process of law when it refused his request for a first-degree sexual abuse instruction.

The Kentucky Supreme Court rejected that contention, noting that “Bagby, under the facts of this case, was not entitled to a sexual-abuse instruction.” The district court also rejected that contention, noting that “instructions which are correct as a matter of state law do not lend themselves to habeas review.”

There are two theories that might support Bagby’s contention that his claim is cognizable by a federal court sitting in habeas corpus review of the conduct of the trial in a state criminal case:

FIRST, that the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the giving of an instruction on a lesser included offense where the instruction is supported by the evidence in the case. If the Constitution imposes this requirement on the conduct of state criminal trials, then a defendant would be entitled to relief if the Kentucky standard for giving instructions on lesser included offenses does not comport with federal constitutional standards. And, even if it does, a writ would still issue if Kentucky courts erred by incorrectly applying the proper standard when considering Bagby’s request for the instruction.

Bagby does not contend that Kentucky’s standard is constitutionally inadequate. That is understandable, since Kentucky law, in conformity with the universal rule, affords a defendant a lesser included offense instruction if the evidence in the case warrants a finding of guilt of the lesser included offense. Reed v. Commonwealth, 738 S.W.2d 818, 822-23 (Ky.1987). That standard comports with federal standards. See Hopper v. Evans, 456 U.S. 605, 612, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982).

He does, however, contend that the standard was erroneously applied to his request. If it is the Constitution that requires that state juries be instructed on lesser included offenses where the instructions are supported by the evidence in the case, then, in its review of the conduct of a state trial, a federal habeas corpus court owes no deference to a state court’s determination that a lesser included offense instruction was not warranted under the facts of the case, since the federal district court will be functioning no differently than would a federal appellate court reviewing a federal conviction. That was the aftermath of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which held that proof beyond a reasonable doubt is a federal constitutional requirement applying to state criminal trials. A federal court sitting in habeas corpus review of a state criminal trial is to apply the usual standard of review for sufficiency of evidence that applies to the review of a federal criminal trial — whether a rational trier of the facts could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

In the context of requested jury instructions, federal courts, sitting in habeas corpus review, would be called upon to assure the accuracy of state court determinations of the offenses fairly encompassed within the purview of the evidence adduced at trial.

SECOND, that even if the giving of instructions on lesser included offenses is not mandated by the Constitution, nevertheless, in Bagby’s case, Kentucky courts so manifestly and flagrantly violated their own clearly stated law in refusing his requested instruction, that he was denied due process of law in violation of the Fourteenth Amendment. If Bagby’s claim is cognizable upon this basis by a federal court sitting in habeas corpus review, then it seems to us that considerable deference is due state courts in the application of their own law.

That is because where, as here, the highest court of a state has reviewed a defendant’s request for a lesser included offense instruction and concluded that it is not warranted by the evidence elicited at trial, that conclusion is axiomatically correct, as a matter of state law. Accordingly, the circumstances that would induce a federal court to overturn the state court determination would need to be extraordinary, indeed. A panel of this court said as much, in an opinion relied upon by the district court in denying Bagby’s petition, Pilon v. Bordenkircher, 593 F.2d 264 (6th Cir.), vacated on other grounds, 444 U.S. 1, 100 S.Ct. 7, 62 L.Ed.2d 1 (1979):

[E]ven if we assume that the failure to give a requested lesser included offense instruction could ever be cognizable in a habeas corpus proceeding, such failure clearly does not rise to the level of constitutional error when the failure was correct as a matter of state law.⁴

Id. at 267 & n. 4.

Accordingly, since it is not the function of a federal habeas court to correct errors in state law, we would not be warranted in setting aside Bagby’s conviction except under the most unusual circumstances. One circuit court of appeals has said that we should not intervene unless failure to give the instructions amounts to a fundamental miscarriage of justice likely to have resulted in the conviction of an innocent person. Nichols v. Gagnon, 710 F.2d 1267, 1269 (7th Cir.1983), cert. denied, 466 U.S. 940, 104 S.Ct. 1918, 80 L.Ed.2d 465 (1984).

While it is conceivable, then, that under this second theory a claim like Bagby’s might be cognizable upon federal habeas corpus review where a fundamental miscarriage of justice is found to have resulted from the arbitrary and unsupportable denial of a lesser included offense instruction in clear defiance of state law, those clearly are not the circumstances of this case. That is attested to by the fact that five members of the en banc court conclude that the instruction was not warranted by the facts in evidence, and four members of the court feel it was. In other words, since a close question is presented on the facts, under this second theory of cognizability, the state determination must stand.

III.

We return then to the one argument which, if resolved in Bagby’s favor, could bring him the habeas corpus relief he seeks: that in noncapital cases, the Constitution requires state courts to instruct the jury on lesser included offenses where the instruction is supported by the evidence.

In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the Supreme Court afforded state defendants in capital cases the protection of entitlement to instructions on lesser included offenses, when the instructions are supported by the evidence. Beck was sentenced to death after a jury found him guilty of the capital offense of “ ‘[rjobbery or attempts thereof when the victim is intentionally killed by the defendant.’ ” Id. at 627, 100 S.Ct. at 2384 (quoting Ala.Code § 13 — 11—2(a)(2) (1975)). He maintained that, during the course of a robbery, his accomplice had unexpectedly killed the victim and that, therefore, he was entitled to an instruction on felony murder, a noncapital crime. Since, under Alabama law, the intent to kill required in the capital offense could not be supplied by the felony murder doctrine, traditional criminal law concepts would recognize felony murder as a lesser included offense to the charged capital crime. However, an Alabama statute specifically precluded any lesser included offense instruction in capital cases. Ala.Code § 13-ll-2(a) (1975). Accordingly, the jury was not given the option to convict of a noncapital crime; instead, it was instructed that it could either acquit Beck, or it could convict him of the capital offense, in which case it was required to impose the death penalty.

The Supreme Court granted certiorari to address a carefully framed question:

“May a sentence of death constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included noncapital offense, and when the evidence would have supported such a verdict?”

Id. at 627, 100 S.Ct. at 2384 (quoting Beck v. Alabama, 444 U.S. 897, 100 S.Ct. 204, 62 L.Ed.2d 132 (1979)). The Court answered that “[w]e now hold that the death penalty may not be imposed under these circumstances.” Id. 447 U.S. at 627, 100 S.Ct. at 2384.

The Court reasoned:

[WJhen the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense — but leaves some doubt with respect to an element that would justify conviction of a capital offense — the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.

Id. at 637, 100 S.Ct. at 2389. Apparently, it was the risk of an unwarranted conviction where the death penalty is imposed that the Court found intolerable. That is because “there is a significant constitutional difference between the death penalty and lesser punishments[.]” Id. (citing Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204-05, 51 L.Ed.2d 393 (1977)). According to the Court, failing to give the jury a “third option” when it is warranted by the evidence, enhances the risk that a capital defendant will be sentenced to death because of caprice or emotion, and not on the basis of reason. Id. 447 U.S. at 638, 100 S.Ct. at 2390. It was for that reason that Alabama was “constitutionally prohibited from withdrawing that option from the jury in a capital case.” Id. A fully instructed jury might have convicted on the noncapital offense, and “the judge would not have the opportunity to impose the death sentence.” Id. at 645, 100 S.Ct. at 2393.

The issue was revisited by the Supreme Court in two subsequent cases. In Hopper, 456 U.S. 605, 102 S.Ct. 2049, in the course of its opinion holding that a capital defendant is entitled to a lesser included offense instruction only when there is evidence to support it, the Court noted that its holding in Beck was limited to the question submitted on certiorari. 456 U.S. at 610, 102 S.Ct. at 2052. The Court further stated that “[o]ur holding in Beck, like our other Eighth Amendment decisions in the past decade, was concerned with insuring that sentencing discretion in capital eases is channeled so that arbitrary and capricious results are avoided.” Id. at 611, 102 S.Ct. at 2052 (citations omitted).

In Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), the Court determined that, when a capital defendant refuses to waive the statute of limitations on lesser included crimes, he is not entitled to lesser included instructions on them. Id. at 456-57, 104 S.Ct. at 3160-61. The Court reaffirmed its “commitment to the demands of reliability in decisions involving death,” id. at 456, 104 S.Ct. at 3160, and reasoned that the reliability of those decisions would be undermined if a jury were given a lesser included offense instruction upon which the defendant could not be convicted.

It appears to us that the Supreme Court’s opinion in Beck is grounded upon Eighth Amendment concerns, rather than those arising from the Due Process Clause of the Fourteenth Amendment. If we are correct in that assessment, then we are not required to extend Beck to noncapital eases. Instead, we must determine whether the error asserted by Bagby is of the character or magnitude which should be cognizable on collateral attack. Is the failure to instruct on lesser included offenses in noncapital cases such a fundamental defect as inherently results in a miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure? See Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). Experience tells us that it is not.

Our view, that it is not an error of such character and magnitude to be cognizable in federal habeas corpus review, is shared by a majority of the circuits. See, e.g., Chavez v. Kerby, 848 F.2d 1101 (10th Cir.1988); Perry v. Smith, 810 F.2d 1078 (11th Cir.1987); Alexander v. McCotter, 775 F.2d 595 (5th Cir.1985); Nichols v. Gagnon, 710 F.2d at 1269; James v. Reese, 546 F.2d 325 (9th Cir.1976); DeBerry v. Wolff, 513 F.2d 1336 (8th Cir.1975); but cf. Vujosevic v. Rafferty, 844 F.2d 1023 (3d Cir.1988).

IV.

Bagby has also suggested that his privilege against self-incrimination, as protected by the Fifth and Fourteenth Amendments to the United States Constitution, was violated as the result of prosecutorial comments regarding his failure to testify. There were two instances where he claims that the prosecution improperly referred to his failure to testify. In the first, the prosecuting witness testified as follows on direct examination:

Q. Did you do anything that, what did you do that might have implied permission if anything like this happen or not do?

A. I didn’t, I had never seen him before, he came barreling through the window. He knew what he was going to do before he came through that window and he did it and he admitted it. He just won’t admit it now.

In the second instance, the prosecutor made these remarks during closing argument:

Remember, about, it’s uncontradicted that testimony about what happened there. We have to assume on what Cindy said. Mr. Goff's [sic] and I agree on that cause all of that went uncontradict-ed about what happened in that house. You know the testimony is [sic].

We will address the latter remark first. Because defense counsel did not object at the time, the state contends that Bagby is precluded by procedural default from challenging the propriety of the comment on collateral review. See Raper v. Mintzes, 706 F.2d 161, 163-64 (6th Cir.1983).

In Harris v. Reed, — U.S. -, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), decided after the panel’s decision in this case, the Supreme Court announced that the “plain statement rule” of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), applies to federal habeas corpus review of state convictions, and governs whether or not a state court decision rests on an adequate and independent state ground, so as to preclude the habeas court from reaching federal questions. In Bag-by’s appeal, the Kentucky Supreme Court merely observed that his “other assertions of error are either without merit or not preserved for appellate review.” Because that statement does not clearly and expressly evidence the state court’s reliance upon procedural default, an adequate and independent state ground, as the basis for denying Bagby’s appeal, we must address the federal question Bagby raises concerning the second comment.

Prosecutorial comment on a defendant’s failure to testify can form the basis for habeas corpus relief. Griffin v. California, 380 U.S. 609, 612-15, 85 S.Ct. 1229, 1232-33, 14 L.Ed.2d 106 (1965); and Raper, 706 F.2d at 164-67. The protections accorded a defendant extend to indirect as well as direct comments. Id. at 164. Where, as here, the comments are of an indirect nature, automatic reversal is not warranted; instead, we must determine whether the comments were manifestly intended by the prosecutor as a comment on the defendant’s failure to testify or were of such a character that the jury would naturally and reasonably take them to be comments on the failure of the accused to testify. Spalla v. Foltz, 788 F.2d 400, 404 (6th Cir.), cert. denied, 479 U.S. 935, 107 S.Ct. 410, 93 L.Ed.2d 362 (1986). Only then will the indirect comment amount to constitutional error.

The prosecution's comment easily can be construed as having been made in response to defense counsel's argument that certain evidence disputed the victim's testimony. Viewed in that context, one cannot say that the prosecutor's comments were manifestly intended to reflect upon the accused's silence, or that the jury would naturally and necessarily take them as such.

Regarding the first instance, we conclude that Bagby's due process rights were not violated. In the interests of economy, our reasons for doing so will not be restated here, as they are to be found in the vacated panel decision, 853 F.2d at 1347.

V.

In his final argument, Bagby claims that his due process rights were violated when a prosecution witness referred to his photograph in a “mug book” while testifying. Upon the same reasoning identified in the vacated panel decision, we remain “unconvinced that the victim’s brief reference to a mug book ... rendered petitioner’s trial fundamentally unfair and violated due process.” Id. at 1346.

For the foregoing reasons, the order of the district court denying petitioner’s writ of habeas corpus is affirmed.

4 . Inasmuch as the highest court of Kentucky expressly held that the state trial court did not err in refusing to give the requested lesser included offense instruction, the refusal was necessarily correct as a matter of state law. It would be an extremely rare ease in which a federal court could conclude that a state court committed an error under state law. Indeed, if the case has been reviewed by the state’s highest court it would be impossible to find an error of state law if that court did not. (It would be conceivable to find an error of state law if a state trial court ignored clearly controlling precedent — but we need not decide the question.) It would thus be equally rare for a federal court to be able to grant habeas corpus relief because of an “erroneous” refusal to give a lesser included offense jury instruction. The issue would instead be whether state law on the matter violated due process.