Burks v. Egeler

• Decision Date: 06 February 1975
• Docket Number: No. 73-2003,73-2003
• Citation: 512 F.2d 221
• Parties: Henry Clay BURKS, Petitioner-Appellant, v. Charles EGELER, Warden, People of the State of Michigan, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 221

512 F.2d 221

Henry Clay BURKS, Petitioner-Appellant, v. Charles EGELER, Warden, People of the State of Michigan,

Respondents-Appellees.

No. 73-2003.

United States Court of Appeals, Sixth Circuit.

Feb. 6, 1975.

Henry Clay Burks, pro se, William J. Dammarell, Cincinnati, Ohio (Court Appointed), for petitioner-appellant.

Frank J. Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Thomas A. Carlson, Jann C. Ryan, Lansing, Mich., for respondents-appellees.

Before PHILLIPS, Chief Judge, and McCREE and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

Henry Clay Burks, originally charged with second degree murder, was convicted of manslaughter by a Detroit Recorder's Court jury on July 25, 1968, and sentenced to a term of ten to fifteen years in prison. Following denial of a motion for new trial, Burks' conviction was affirmed by the Supreme Court of Michigan. ¹

In a petition to the district court for writ of habeas corpus under 28 U.S.C. § 2254, Burks alleged eight issues, ² but after careful examination of the record in the state proceedings, the district judge considered only two issues on the merits, properly refusing to rule on the remainder because Burks had failed to exhaust his state remedies as to them. The trial judge found no merit in the two issues on which Burks had exhausted his state remedies. We agree and affirm.

Appellant's conviction arose out of a brawl at Gene's Bar on East Jefferson Avenue in Detroit on March 19, 1968. Burks and the deceased, Christy Earls, had entered the bar shortly before eleven p. m. and Earls soon became involved in a dispute with another patron, one LaFleure. During the course of the ensuing scuffle, Earls was shot in the upper left thigh, the bullet completely severing the femoral vein and partially severing the femoral artery. Earls bled to death and Burks was charged with second degree, or unpremeditated, murder.

At the trial it was the state's contention that Burks had fired the fatal shot, intending it, however, for LaFleure and not for Earls. Burks denied firing the shot. He claimed instead that Earls was in possession of the gun at the time of the scuffle and that the wound was self-inflicted when the gun went off accidently as Earls sought to hit LaFleure with the butt end of it.

Burks claims that he was wrongfully precluded from introducing evidence of the prior criminal record of Earls, for the purpose of showing that a man with such a record would more likely be in possession of the pistol, thus corroborating Burks' self-inflicted wound theory. Admissibility of evidence in a state trial does not normally raise constitutional questions unless it impugns fundamental fairness. Gemmel v. Buchkoe, 358 F.2d 338 (6th Cir. 1966), cert. denied 385 U.S. 962, 87 S.Ct. 402, 17 L.Ed.2d 306, reh. denied 385 U.S. 1021, 87 S.Ct. 723, 17 L.Ed.2d 561. We agree with the district judge that no constitutional issue was presented here, and note that in any event the defense succeeded in getting the desired information before the jury by other evidence.

Finally, Burks claims that he was denied his Fourteenth Amendment right to due process because his conviction was based upon perjured testimony and because certain witnesses whom he had intended to call failed to show up at the trial after being threatened. ³ In proof thereof, he submitted a number of affidavits in support of his motion for a new trial, made to the state trial judge more than a year after his conviction. Burks' counsel brought some of the affiants to the hearing and while the judge declined to take their testimony, he indicated a complete familiarity with the contents of the affidavits, and Burks' counsel indicated that if called, the witnesses would "re-testify to what they have put in their affidavits." The state trial judge, in denying the motion, displayed a healthy skepticism concerning the reliability of the affidavits, and commented:

"Now notwithstanding this information, if true, has been known to this defendant for this extended period of time, there is no indication that such illegal conduct was ever reported to the Wayne County Prosecutor."

On appeal to the Michigan Court of Appeals, that court stated:

"Such information as contained in the affidavits is asserted to be in the nature of new evidence. Such evidence, if newly discovered, can form the basis for the granting of a new trial if it meets with the requirements as set out in People v. Keiswetter, (1967), 7 Mich.App. 334, 151 N.W.2d 829. Such determination is directed to the sound discretion of the trial court. People v. Nickopoulous (1970), 26 Mich.App. 297, 182 N.W.2d 83. The trial court has denied defendant's motion for a new trial. Giving due regard to the superior opportunity of the trial court to appraise the credibility of the trial witnesses and the several affiants, we cannot say that the court abused its discretion in denying defendant's motion." People v. Burks, supra, 30 Mich.App. 102, 186 N.W.2d 18, at p. 19 (1971).

Thus Michigan courts recognize, as does the federal system, that the decision to grant a new trial is usually addressed to the sound discretion of the trial court, Rule 33, Federal Rules of Criminal Procedure; U. S. v. Sposato, 446 F.2d 779 (2nd Cir. 1971).

The thrust of the affidavits presented and considered by the state courts and by the district court here was that one Joseph Golden, who testified at trial on behalf of the prosecution, succeeded, by threat of bodily harm, in persuading certain witnesses either to avoid testifying or to perjure the testimony they gave. Golden's motive, it is claimed, was a mistaken belief that his sister might be the beneficiary of double indemnity insurance on Earl's life if it were shown that the death wound was not self-inflicted.

In Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), the Supreme Court, while denying relief on other grounds, made it clear that the Fourteenth Amendment right to due process prohibits a knowing an d deliberate use by a state of perjured evidence in order to obtain a conviction. And in Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967), federal habeas corpus was extended to protect the petitioner where it appeared that the prosecution in the state court had deliberately represented to the court and jury that certain stains on the victim's clothing were blood when it knew they were in fact paint.

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. Texas, 355 U.S. 28 (78 S.Ct. 103, 2 L.Ed.2d 9). There can be no retreat from that principle here." Miller v. Pate, supra, at p. 7, 87 S.Ct. at p. 788.

Mooney v. Holohan, supra, emphasized that it was the knowledgeable and deliberate use of the perjured evidence which constituted the constitutional infringement. In other words, it is "state action" which lies at the heart of the violation:

"Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. And the action of prosecuting officers on behalf of the state, like that of administrative officers in the execution of its laws, may constitute state action within the purview of the Fourteenth Amendment. That amendment governs any action of a state, 'whether through its legislature, through its courts, or through its executive or administrative officers.' Carter v. Texas, 177 U.S. 442, 447 (20 S.Ct. 687, 689, 44 L.Ed. 839); Rogers v. Alabama, 192 U.S. 226, 231 (24 S.Ct. 257, 48 L.Ed. 417); Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U.S. 226, 233, 234 (17 S.Ct. 581, 41 L.Ed. 979)." Mooney v. Holohan, supra, 294 U.S. at 112, 113, 55 S.Ct. at 342.

In subsequent decisions addressed to the due process issue, the Supreme Court has consistently noted the presence of impermissible state involvement in the untruthful testimony, e. g., Miller v. Pate, supra. In Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942), the allegation was that the perjured testimony was induced by threats from local authorities of a penitentiary sentence, and that there was knowing use of the perjured testimony as well as deliberate suppression of favorable evidence. In Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957), while the perjury was not claimed to have been procured, it was known to have existed when given at the trial. There, the defendant was accused of murdering his wife, and claimed in defense that he did so in a fit of sudden passion aroused when he discovered his wife, already suspected of infidelity, kissing one Castilleja late at night in a parked car. The government, knowing of illicit intercourse between Castilleja and the wife, never the less suffered Castilleja to testify falsely that the relationship had been nothing more than one of casual friendship. In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the Supreme Court held that due process had been denied where the prosecution knowingly and without correction elicited false testimony that no promise of leniency had been given in exchange for the testimony of a prosecution witness. At the same time, Napue pointedly referred to "(t)he principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction ...", 360 U.S. at 269, 79 S.Ct. at 1177.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), it was held that suppression by the prosecution of evidence requested by the accused and favorable to him violated due process...