414 F.2d 50 (8th Cir. 1969), 18744, Johnson v. Bennett

Docket Nº:18744.
Citation:414 F.2d 50
Party Name:Gale H. JOHNSON, Appellant, v. John E. BENNETT, Warden, Iowa State Penitentiary, Appellee.
Case Date:July 17, 1969
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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414 F.2d 50 (8th Cir. 1969)

Gale H. JOHNSON, Appellant,


John E. BENNETT, Warden, Iowa State Penitentiary, Appellee.

No. 18744.

United States Court of Appeals, Eighth Circuit.

July 17, 1969

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

William A. Claerhout, Asst. Atty. Gen. of Iowa, Des Moines, Iowa, for appellee.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES, BLACKMUN, MEHAFFY, GIBSON, LAY, HEANEY, and BRIGHT, Circuit Judges, sitting en banc.

BLACKMUN, Circuit Judge.

This habeas corpus case, instituted by Gale H. Johnson, an Iowa state prisoner now 64 years of age, and primarily concerning the frequently contested but consistently approved Iowa alibi instruction, is before us a second time. 1

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Johnson is serving a life sentence 2 in the Iowa penitentiary as a result of his conviction by a jury of murder in the second degree, as defined by § 12912 of the 1939 version of the Iowa Code. The victim, a police officer, was shot on the early morning of May 27, 1934, as he was investigating a burglary of a Burlington store. On appeal Johnson's conviction was unanimously affirmed by the Supreme Court of Iowa. State v. Johnson, 221 Iowa 8, 264 N.W. 596, 267 N.W. 91 (1936).

Judge Oscar Hale, who presided at Johnson's 1934 state trial, gave the jury instructions which consume 18 pages of the transcript. Those instructions contain numerous references, at least 13 by our count, to the effect that the state had the burden of establishing the material charges of the indictment, including time and place, beyond a reasonable doubt, that 'the innocence of the defendant will be presumed', that the jury's determination is to be made in the light of all the evidence, and the like. But they also contain the particular alibi instruction now challenged. 3 The defense, in its post-trial motion, excepted to this instruction on the grounds, among others, that it 'does not correctly state the law with reference to the defense of alibi.' This was overruled by Judge Hale.

On appeal the Supreme Court of Iowa said, 264 N.W. at 602:

'An alibi is an affirmative defense; the burden of proof is upon the person setting up an alibi to prove it by a preponderance of evidence. Of course, if the whole record raises a reasonable doubt of his guilt, he may be found not guilty. The instructions in this case in regard to the alibi did not go as far as such instructions many times rightfully go. The court might very well have told the jury, in addition to what he said about an alibi, that the evidence of an alibi should be scanned with caution; that it is a defense easily manufactured.'

As noted above, this language is that of a unanimous court.

Johnson's present application for federal habeas relief, after denial by the district court, came before a panel of this court in 1967. Three specific due process issues were raised: (1) the use of allegedly false evidence at Johnson's state trial; (2) the claimed purposeful suppression by the state of impeachment testimony by a defense witness named

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Orsucci, since deceased; and (3) the impropriety, generally and constitutionally, of the alibi instruction which, it was argued, served to shift the burden of proof as to the alibi to the defendant and thus to destroy the fundamental presumption of innocence. Our panel, after careful study and with a detailed opinion, decided each of these issues, as well as a general claim of denial of a fair trial, adversely to the petitioner. Johnson v. Bennett, 386 F.2d 677 (8 Cir. 1967).

Our panel pointed out that this court, 50 years before, had reversed a federal conviction because of the use of such an alibi instruction, Glover v. United States, 147 F. 426, 430-433 (8 Cir. 1906); that the Iowa court, although at times sharply divided, had consistently upheld an instruction of this type; that, when Johnson's case was tried in 1934, over three decades ago, the instruction 'had the full backing of the Iowa Supreme Court'; that Johnson's conviction 'was finally adjudicated long before the (United States) Supreme Court determined federal constitutional rights guaranteed by the first ten amendments are to be applied to state proceedings by reason of the Fourteenth Amendment'; that the defendant, at his trial and on his appeal, had made no challenge to the instruction on constitutional grounds; that there was 'little doubt that such challenge, if then made, would have been rejected'; and that it did not believe that the present challenge, even if 'entitled to be upheld under present day standards, would be given retroactive application to the 1934 conviction.'

After the panel's decision Johnson filed a petition for certiorari with the Supreme Court of the United States. Certiorari was granted. 390 U.S. 1002, 88 S.Ct. 1247, 20 L.Ed.2d 102.

Prior to the argument of Johnson's case in the Supreme Court, the Iowa alibi instruction's due process aspect was once again presented to this court, this time by Ronald Maurice Stump, another state prisoner seeking federal habeas relief. Stump had been convicted of second degree murder in 1961 and had received and was serving a sentence of 75 years. His sole defense was an alibi. In his state trial the jury had been instructed that the defendant must establish the alibi by a preponderance of the evidence but that the burden of proof beyond a reasonable doubt as to the case as a whole was on the state. Stump's conviction was affirmed by the Iowa Supreme Court by a divided (5-3) vote. State v. Stump, 254 Iowa 1181, 119 N.W.2d 210 (1963). Certiorari was denied. 375 U.S. 853, 84 S.Ct. 113, 11 L.Ed.2d 80.

In his federal habeas petition Stump raised the due process issue with respect to the alibi instruction and also questioned Iowa Code § 777.18 in its application to him. The district court denied the petition. We heard the case en banc and by a divided vote concluded that, in Stump's case, the Iowa rule as to the burden of proof on the alibi reached the level of constitutional error and was violative of the 14th Amendment's due process clause. Stump v. Bennett, 398 F.2d 111 (8 Cir. 1968). Judge Lay, in speaking for the majority of five judges, cited Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934), and other cases and distinguished the defense of alibi from the plea of insanity considered in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). He necessarily made reference to the panel decision in Johnson v. Bennett and to the then pending grant of certiorari in Johnson's case and observed:

'The Johnson case concededly has some factual distinctions from the present one. Also significant is the fact that in the Stump case, unlike Johnson, counsel has carefully preserved by objections throughout the trial and appellate procedures his argument as to the unconstitutionality of the instruction.' 398 F.2d at 122-123.

The three judges who had comprised the Johnson panel dissented in Stump. In two separate opinions, 398 F.2d at 123 and 128,

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they (a) agreed that alibi is not an affirmative defense; (b) agreed that an instruction placing the burden on the defendant to establish alibi by a preponderance of the evidence is erroneous; (c) observed that 'due process permits the state a wide range in developing rules of procedure and evidence'; (d) felt that Stump's instructions, 'when * * * fairly considered as a whole', gave him 'the full benefit of the presumption of innocence'; (e) noted that 'on at least twelve different occasions' the Stump jury was told that it 'was required to determine beyond a reasonable doubt that defendant had committed the offense before it could find him guilty'; (f) said that Leland v. Oregon 'affords strong support for an affirmance here'; (g) characterized the alibi evidence in Stump's case as 'extremely weak'; and (h) stated that the right given the state to retry Stump was of doubtful value in view of the passage of 7 years since the commission of the crime.

Four months later Johnson's case was argued in the Supreme Court. The Court soon issued its opinion, per curiam, but with Mr. Justice Black dissenting without other comment, vacating this court's panel decision and remanding the case 'for reconsideration' by us 'in view of' our en banc holding in Stump. Johnson v. Bennett, 393 U.S. 253, 89 S.Ct. 436, 21 L.Ed.2d 415 (1968). On the same day the Supreme Court, with three Justices voting otherwise, denied certiorari in Stump's case. 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968).

In the light of this history we felt it advisable to have our reconsideration of Johnson's case en banc with supplemental briefing and reargument. This has been done.

We turn initially to the Iowa decisions.

We have read with interest the many Iowa cases where the alibi instruction was under challenge. The very number of the cases, and the constant resubmission of the issue to the court, indicate the concern which the instruction has occasioned. Although the Iowa court has been unanimous in opinion in a large majority of its cases, the court was split in its early opinions and again has been split in the most recent ones. In the intervening unanimous opinions there are, nevertheless, some indications of struggle in the decisional process.

Apparently the source case is State v. Vincent, 24 Iowa 570 (1868). The charge was murder. The defense asserted an alibi and, as well, that the victim was not the person named by the state. The court placed the burden of proof as to both issues upon the defense. 'These defenses, then, must be sustained by the prisoner, and the evidence necessary to sustain either of them must be sufficient to outweigh the proof tending to establish its contradictory hypothesis.' 24 Iowa at 578. In the next two cases, both resulting, incidentally, in reversals of convictions, minority disagreement with the Vincent rule is expressed. State v. Hardin, 46 Iowa 623 (1878); State v....

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