Johnson v. Turner

Decision Date21 July 1970
Docket NumberNo. 287-69.,287-69.
Citation429 F.2d 1152
PartiesMax M. JOHNSON, Appellant, v. John W. TURNER, Warden, Utah State Prison, Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Phillip Pankoff, Denver, Colo., for appellant.

Lauren N. Beasley, Chief Asst. Atty. Gen., Salt Lake City, Utah (Vernon B. Romney, Atty. Gen., on the brief) for appellee.

Before BREITENSTEIN, SETH and HOLLOWAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

This appeal is taken from a denial of habeas corpus relief sought under 28 U. S.C. § 2254. Appellant Johnson is confined in the Utah State prison under an indeterminate sentence of one to ten years imposed in March, 1968, following a grand larceny conviction. He sought post-conviction relief in the State District Court by assertion of some issues raised here, but was denied such relief after a hearing at which appellant was present and represented by counsel. It appears that then both an appeal from the State trial court's denial of post-conviction relief and an original petition for habeas corpus or coram nobis relief failed in the Utah Supreme Court.

Appellant's federal habeas corpus proceeding was then commenced in April, 1969. The trial court's Memorandum Decision stated that the petition, transcripts and files had been examined; that no issues of substance involving the Constitution or laws of the United States were presented, the petition being without merit; that the Utah District Court had properly considered the questions and denied relief; and that as to State law questions involved, the State Court interpretation was conclusive. The writ was denied in April, 1969, without a hearing and this appeal followed.

Appellant submitted his case in the State Court post-conviction proceeding on the basis of the original trial record and a stipulation as to testimony his trial attorney would have given. From that record, and the transcript of the post-conviction proceeding, the material facts are as follows. Appellant was tried on an information charging grand larceny by taking an electric guitar of a value in excess of $50. The principal prosecution witness, Newell, testified that he operated a music center in American Fork, Utah; that on January 14, 1968, he met with one Rudd and appellant; that Rudd wanted to borrow an electromatic typewriter belonging to Newell; that Newell loaned them the key to his place of business for this purpose; and that appellant picked up the key as Rudd was returning after a short absence from the room. A few days later Newell found that two guitars, including the one in question, and an amplifier were missing from the store. Newell contacted Rudd and appellant about the loss and appellant denied any knowledge of it. When Newell contacted the Sheriff's office a report of the guitar being pawned was found. The instrument was located at a pawnshop whose owner testified appellant pawned the guitar. Newell identified the guitar at trial and said its cost to him was $200.

Unsavory facts about the case disturbed the Utah Courts and concern us. Newell admitted prior discussion with Rudd and Johnson about a money raising scheme. He conceded that it was a fraudulent plan involving the use of false identification and credit cards but said that he was not to know its details. Apparently Newell was to help raise funds to start the project by allowing use of his personalized checks which he signed. His testimony is unclear as to whether his balance was sufficient at the time to cover the amounts discussed, and he said at one point that his share of the proceeds from the scheme would enable him to cover the checks. Appellant's counsel developed Newell's involvement by cross-examination. The defense theory was that Newell consented to taking of the guitars, and also that Newell was an accomplice whose uncorroborated testimony could not support a conviction. Newell denied giving Rudd or appellant permission to take anything but the typewriter. The State Trial Court observed that Newell's testimony was almost inconceivable, but that this was for the jury to decide.

The pawnshop owner identified the guitar and said appellant had pawned it on January 16. The Sheriff confirmed Newell's report of the loss. He testified that appellant came to his office as requested; that he said they had the key to get the typewriter but could not find it; and that later he went back and took the guitars and the amplifier.

Rudd testified for appellant and detailed the money raising scheme. He said Newell was to put up $300 for obtaining fictitious identification. He said that Newell gave them his key to get the typewriter to type out the checks, but that there was no discussion in his presence about the guitars. The scheme involving the credit cards was not carried out. This was the substance of the defense proof.1 The jury rejected the defense and found appellant guilty. His post-conviction proceedings failed in the Utah State Courts and in the Federal District Court, and this appeal followed.

First appellant argues that his trial by eight jurors under Art. I, § 10 of the Utah Constitution deprived him of his federal constitutional rights guaranteed by the Sixth and Fourteenth Amendments. He says that trial by jury carries the meaning recognized in this country and in England when the Constitution was adopted including, among other things, a jury of twelve men. See Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 74 L.Ed. 854. It is now recognized that the Fourteenth Amendment guarantees jury trial in State Court trial of serious criminal cases which would come within the Sixth Amendment guarantee of trial by jury in the Federal Courts. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L. Ed.2d 491; Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522. From these propositions appellant contends that his trial by a jury of eight infringed his federal constitutional rights.

The historical underpinning of appellant's argument has been removed by the recent decision in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446. There the Court sustained a robbery conviction by a jury of six in the Florida courts over the same objection made by appellant here. The opinion of the Court held that "* * * the 12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment." Id. at 100, 90 S.Ct. at 1905. Thus the Sixth and Fourteenth Amendments did not bar...

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  • United States ex rel. Townsend v. Twomey
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 21 Enero 1972
    ...we decline to consider for the first time here an issue never formed in either the state or federal court. Johnson v. Turner, 429 F.2d 1152, 1155 (10th Cir. 1970). Finally, Townsend asserts that he was not provided with a full transcript of the voir dire which would show that the jury was c......
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    ...of evidence to support a conviction." Wampler v. Warden, Maryland Penitentiary, 224 F.Supp. 37, 40 (D.Md.1963). See Johnson v. Turner, 429 F.2d 1152, 1155 (10th Cir. 1970); Application of Aschmeller, 403 F.Supp. 983 (D.S.D.1975), Aff'd, 534 F.2d 830 (8th Cir. 1976); Lee v. Henderson, 342 F.......
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    ...1073, 1075 (5th Cir. 1984) (allegation of defective indictment insufficient to state a claim for habeas relief); Johnson v. Turner, 429 F.2d 1152, 1154 (10th Cir. 1970) (alleged defect in state complaint not cognizable in habeas corpus); Hogan v. Ward, 998 F. Supp. 290, 294-95 (W.D.N.Y. 199......
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