Johnson v. Bennett

• Decision Date: 28 November 1967
• Docket Number: No. 18744.,18744.
• Parties: Gale H. JOHNSON, Appellant, v. John E. BENNETT, Warden Iowa State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

386 F.2d 677 (1967)

Gale H. JOHNSON, Appellant, v. John E. BENNETT, Warden Iowa State Penitentiary, Appellee.

No. 18744.

United States Court of Appeals Eighth Circuit.

November 28, 1967.

Gale H. Johnson, pro se.

Ronald L. Carlson, Iowa City, Iowa, for appellant.

Richard C. Turner, Atty. Gen. of Iowa, and William A. Claerhout, Asst. Atty. Gen., Des Moines, Iowa, for appellee.

Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by Gale H. Johnson, hereinafter called defendant, from final order of the district court entered after a full and fair evidentiary hearing denying his petition for a writ of habeas corpus. The record shows that the defendant is presently serving a life sentence in the Iowa penitentiary as a result of his conviction by a jury of second degree murder and the permissible life sentence imposed under Iowa law as a result of such conviction. The conviction was affirmed upon appeal; rehearing was denied. State v. Johnson, 221 Iowa 8, 264 N.W. 596; 267 N.W. 91. The trial court has filed two opinions in this case, one on April 26, 1966, and a final opinion on December 6, 1966. This appeal is from the orders of dismissal based upon such opinions.

The trial court issued a certificate of probable cause under 28 U.S.C.A. § 2253 which concludes, "It is ordered that the application of petitioner Gale H. Johnson for the issuance of certificate of probable cause is hereby granted." In the discussion preceding the order, the trial court stated that the certificate is being granted on the basis of asserted violation of constitutional rights arising out of the alibi instruction and that other issues involve factual determinations which would not warrant a certificate. Upon the basis of such statements, the State contends that this appeal is limited to the alibi issue. We do not agree. The order portion above quoted contains no restriction upon issues to be considered upon appeal and it is our view that the order granting the certificate does not limit the issues which defendant may raise upon this appeal. While we have considerable doubt whether the trial court can limit issues to be considered upon appeal by limitations in the certificate, we do not reach such issue here.

The jurisdictional issue of exhaustion of state remedies is not raised by either party. The record before us is not as satisfactory on this issue as we would like to have it. It does appear however that defendant has filed three habeas corpus applications in the appropriate state district court and that he has also filed an original habeas corpus application with the Supreme Court of Iowa, presumably raising the issues here asserted. All such petitions were denied without an evidentiary hearing. The Iowa Supreme Court petition was denied on January 6, 1966, by a summary order stating in substance that the legality of petitioner's imprisonment had been determined by the affirmance of his conviction upon direct appeal and by orders denying prior petitions for habeas corpus. So far as we can ascertain, neither the Iowa legislature nor the Iowa Supreme Court has liberalized the rules for consideration of post-conviction attacks asserting federal constitutional rights have been violated in the proceeding resulting in the conviction. As stated by the Supreme Court in Case v. State of Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed. 2d 422 (concurring opinions), it is highly desirable that the states solve their own problems by providing an adequate means of review of post-conviction attacks asserting substantial violation of federal constitutional rights. See Baines v. Swenson, 8 Cir., 384 F.2d 621 (Oct. 31, 1967).

Upon the record before us, we believe there has been a sufficient showing of exhaustion of available state remedies and that jurisdiction exists in the trial court to consider the petition and in this court to entertain the appeal. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.

We now proceed to the consideration of the issues presented by this appeal. Defendant for reversal relies upon the following asserted errors:

I. The use of false evidence against the accused is in conflict with the due process clause of the Fourteenth Amendment and vitiates defendant's conviction.

II. Suppression of the testimony of Orcussi, an important witness, constitutes a denial of due process.

III. The alibi instruction given, which shifts the burden of proof of alibi to defendant, destroys the fundamental presumption of innocence.

IV. The court erred in determining petitioner was afforded a trial consistent with the fundamental concept of justice.

The facts pertinent to this litigation are set out in the opinion of the Supreme Court of Iowa in State v. Johnson, supra, and in the memorandum opinions of the trial court. We shall limit our factual recital to the bare essentials necessary for the consideration of the issues presented.

It is established beyond question that a police officer was fatally shot about 5:30 a. m. on May 27, 1934, while investigating a burglary at a Burlington store. Defendant at his trial was connected with the murder by two types of evidence, identification testimony and testimony relating to an alleged admission by defendant. The two witnesses, Chumney and Emerson, who resided near the shooting area, testified they heard the fatal shot and that from their homes they saw two persons, one of whom was the defendant, walking rapidly down the street away from the murder scene and enter and drive away in a black Ford automobile, and that the defendant was carrying a sawed off shot gun. The credibility of their testimony that they were able to identify the defendant, whom they had not previously known, in the short available interval in light of the intervening distance and obstructions, was sharply challenged at the trial.

Defendant did not testify himself but presented eight witnesses who testified that defendant was in Des Moines, one hundred and sixty-four miles distant, at the time of the shooting. If the alibi witnesses' testimony is accepted, defendant could not have committed the crime. We agree with the determination of the Supreme Court made on the appeal that the credibility of the identification witnesses presented a fact issue for the jury.

Defendant was kept at the penitentiary for safekeeping prior to his trial. Two fellow prisoners, Ruggles and Orton, testified at the trial that they heard defendant admit to another prisoner, Yates, that defendant had killed the officer. Yates denied that such statement was ever made to him and there is also evidence that defendant was at all times under close guard and would have been unable to communicate with Yates. Such testimony is referred to in the affirming opinion of the Iowa Supreme Court as testimony supporting the conviction.

At the trial, Ruggles and Orton claimed to have intercepted notes purportedly written by the defendant for smuggling outside the institution.

I.

Defendant, upon the basis of Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690, and Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, urges that the use of false evidence against him violates the due process clause of the Fourteenth Amendment. Such statement is too broad. The Court in Miller v. Pate thus states the applicable rule:

"More than 30 years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence. Mooney v. Holohan, 294 U.S. 103 55 S.Ct. 340, 79 L.Ed. 791. There has been no deviation from that established principle. Napue v. People of State of Illinois, 360 U.S. 264 79 S.Ct. 1173, 3 L.Ed.2d 1217; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; cf. Alcorta v. State of Texas, 355 U.S. 28 78 S.Ct. 103, 2 L.Ed.2d 9. There can be no retreat from that principle here." 386 U.S. 1, 7, 87 S.Ct. 785, 788.

In the Miller case, the Court found that the prosecutor at the time of trial knew the incriminating shorts were stained with paint and the stains were passed off at the trial as blood stains.

Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217, extends the rule to the situation where the prosecution, although not soliciting false evidence, "allows it to go uncorrected when it appears."

So far as we have been able to ascertain, all the Supreme Court cases setting aside convictions for want of due process by reason of the reception of false testimony are based upon the knowledge of the prosecutor that the testimony received is false or knowledge that material evidence has been suppressed. Such would appear to be a proper limitation of the rule. If convictions could be set aside years after they became final merely upon proof that some testimony of a witness proved to be false, there would be no finality to convictions and the orderly administration of justice would be unduly hampered.

There is no substantial evidence here to support a finding that the prosecutor knowingly used false testimony or that he permitted false testimony received to stand uncorrected. It is the claim of the defendant that certain notes which Orton and Ruggles intercepted were improperly received in evidence upon the basis that they were in defendant's handwriting. There is evidence that such notes were designed for smuggling out of the prison and contained language such as, "Have wife tell same story. Have nothing on me. Do what you said you would for me." and "They have nothing on any one. All they have to do is just keep still." Mr. Faxon, a recognized handwriting expert from Chicago, testified at the 1934 trial that such notes were in defendant's handwriting. Defendant in the present proceeding produced expert testimony that the writing on the notes was not his, and the State's present expert agrees with such testimony. There...