Bassett v. Smith, 71-2513.

• Decision Date: 17 July 1972
• Docket Number: No. 71-2513.,71-2513.
• Citation: 464 F.2d 347
• Parties: James K. BASSETT, Petitioner-Appellant, v. S. Lamont SMITH, Warden, Georgia State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

464 F.2d 347 (1972)

James K. BASSETT, Petitioner-Appellant, v. S. Lamont SMITH, Warden, Georgia State Prison, Respondent-Appellee.

No. 71-2513.

United States Court of Appeals, Fifth Circuit.

July 17, 1972.

Foy Devine, Atlanta, Ga. (Court appointed), for petitioner-appellant.

Arthur K. Bolton, Atty. Gen. of Ga., Harold N. Hill, Jr., Courtney Wilder Stanton, David L. G. King, Jr., Asst. Attys., Gen., Atlanta, Ga., for respondent-appellee.

Before RIVES, BELL and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

In Smith v. Smith, 5 Cir. 1971, 454 F.2d 572, this court held that the alibi charge used in the state courts of Georgia violated due process standards. This appeal presents the narrow question of the extent to which that ruling will be given retroactive application.

I.

James K. Bassett was indicted along with Charles Patterson on August 19, 1957, in the Bib County, Georgia, Superior Court for murder. Both defendants entered pleas of not guilty. Their cases were tried separately. On September 18, 1957, the jury found Bassett guilty of murder and recommended mercy. Bassett was sentenced to life imprisonment, but was released on parole December 20, 1971.¹

After exhausting his remedies in the state courts of Georgia, Bassett filed this habeas petition in federal court asserting that the use of Georgia's alibi charge against him violated due process. The only factual issue in the court below was the content of the instructions given at his trial. That portion of the transcript of the trial which contained the charge of the court could not be located. The judge who tried the case prepared an affidavit in which he set out a "Charge of the Court" which, to the best of his recollection and based upon his practice at the time the case was tried, was given to the jury in Bassett's trial. That portion of the charge which Bassett attacks is as follows:

The burden is on the accused to establish his alibi, not beyond a reasonable doubt, but to the reasonable satisfaction of the jury. If the showing as to alibi introduced in this case has established to your reasonable satisfaction that the defendant was elsewhere when the alleged crime was committed, if one was committed, it would be your duty to acquit the defendant.

The charge given at Bassett's trial was virtually indistinguishable from the charge condemned in Smith.

The court below declined to grant habeas relief. In an order filed prior to our decision in Smith, the court ruled that any error in the charge was harmless error not rising to constitutional dimensions.

II.

Smith was decided on December 14, 1971. The decision was based upon a series of Eighth Circuit cases dealing with the Iowa alibi charge which was similar to the Georgia charge. In the first case, Johnson v. Bennett, 8 Cir. 1967, 386 F.2d 677, a panel of the Eighth Circuit sustained the Iowa alibi charge against a due process attack. The Supreme Court immediately granted certiorari in the case, Johnson v. Bennett, 390 U.S. 1002, 88 S.Ct. 1247, 20 L. Ed.2d 102 (1968). Before disposition of Johnson, however, the Eighth Circuit went en banc to consider Stump v. Bennett, 8 Cir. 1968, 398 F.2d 111, a case involving the same Iowa charge. In Stump the Eighth Circuit, with three members of the Johnson panel dissenting, concluded that the Iowa charge contravened the due process guarantee by shifting the burden of proof on an essential element of the crime. On December 16, 1968, shortly after Stump, the Supreme Court vacated Johnson for reconsideration in light of Stump. Johnson v. Bennett, 393 U.S. 253, 89 S. Ct. 436, 21 L.Ed.2d 415 (1968). On the same day, the court denied certiorari in Stump. Bennett v. Stump, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968).

The State of Georgia initially contends that our decision in Smith should be applied prospectively only from the date on which it was decided, December 14, 1971. This course is, however, foreclosed by the original Smith decision which was explicitly made applicable to all trials conducted after the date of the Supreme Court's denial of certiorari in Stump. 454 F.2d 579, n. 4. Accordingly, the narrow question which we consider here is whether the decision should be applied retroactively to trials conducted prior to December 16, 1968.

III.

From its origin in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed. 2d 601 (1965), the doctrine that newly announced constitutional principles of criminal law could, under certain circumstances, be given limited prospective application has developed into a complex body of decisional law. The most frequently cited formulation of the criteria guiding resolution of retroactivity problems is that contained in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L. Ed.2d 1199 (1967). There, the Court articulated three factors which must be considered in making retroactivity determinations:

(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.

Id., at 388 U.S. 297, 87 S.Ct. 1970. See also, Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968).

The Court has held that retroactive effect must be given a new rule where the "major purpose of * * * the doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials * * *". Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971). However, the Court has recognized that "the extent to which a condemned practice infects the integrity of the truth-determining process at trial is a `question of probabilities'". Stovall v. Denno, 388 U.S. 293, 298, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199. Where the Court has

been unable to conclude that the use of such a "condemned practice" in past criminal trials presents substantial likelihood that the results of a number of those trials were factually incorrect, it has not accorded retroactive effect to the decision condemning that practice.

Williams v. United States, 401 U.S. 646, 655 n. 7, 91 S.Ct. 1148, 1154, 28 L.Ed.2d 388 (1971) (emphasis added). Thus, for example, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), which required counsel at pretrial line-ups, was not applied retroactively even though the rule was "aimed at avoiding unfairness at the trial by enhancing the reliability of the factfinding process in the area of identification evidence", because the possibility of error in the truth-determining process was outweighed by the adverse impact of retroactivity on the administration of justice. Stovall v. Denno, supra, at 388 U.S. 298, 87 S.Ct. 1967. Similarly, the Court denied retroactive application to Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), which held that states cannot refuse a request for jury trial in serious criminal cases, reasoning:

In the context of the institutions and practices by which we adopt and apply our criminal laws, the right to jury trial generally tends to prevent arbitrariness and repression. * * * We would not assert, however, that every criminal trial—or any particular trial—held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.

DeStefano v. Woods, 392 U.S. 631, 633-634, 88 S.Ct. 2093, 2095, 20 L.Ed.2d 1308 (1968); see also, Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971).

These decisions teach that the mere possibility that the rule may have some effect on the reliability of the fact-finding process does not automatically require its retroactive application. Even where the rule is aimed in some degree at improving the truth-determining function of the trial, the court must exercise its best judgment in weighing this factor against the adverse impact on the administration of justice and the good faith reliance of state law enforcement officials.

IV.

Upon consideration of the three factors enumerated in Stovall v. Denno, we conclude that retroactive application of Smith to trials conducted prior to December 16, 1968, is not required.

A. The Purpose of the Smith Rule

As this court recognized in the original Smith opinion the Georgia charge on alibi was likely to appear contradictory to lay jurors. On the one hand, the charge instructed that alibi was an affirmative defense which the accused must prove to the reasonable satisfaction of the jury. However, the jury was further instructed to consider all the evidence, including that of alibi, in determining the guilt of defendants beyond a reasonable doubt. The charge in no way suggested that the jury was required to accept the state's proof of presence if it was not reasonably satisfied as to the truth of the defendant's alibi evidence. Indeed, the charge as a whole strongly emphasized the requirement of proof beyond a reasonable doubt of every element of the crime, including presence.

In view of these apparent contradictions, the Smith court held that the charge violated due process because it was likely to cause "confusion" and created a grave danger that the "jury might incorrectly place the burden of proof on the petitioner" as to the factual issue of his presence at the scene of the crime. Smith, at 454 F.2d 578. Thus, the purpose of the Smith decision may be stated as being the elimination of the possibility that a highly ambiguous and contradictory charge might lead the jury to an erroneous belief that it was free to apply a lesser standard of proof to an essential element of the...