Beaver v. Hamby

• Decision Date: 17 November 1983
• Docket Number: Civ. A. No. 3-83-0756.
• Citation: 587 F. Supp. 88
• Parties: Darryl James BEAVER, Petitioner, v. M.C. HAMBY, etc., et al., Respondents.
• Court: U.S. District Court — Middle District of Tennessee

587 F. Supp. 88

Darryl James BEAVER, Petitioner, v. M.C. HAMBY, etc., et al., Respondents.

Civ. A. No. 3-83-0756.

United States District Court, M.D. Tennessee, Nashville Division.

September 28, 1983.

On the Merits November 17, 1983.

Thomas V. White, Nashville, Tenn., for petitioner.

Robert Grunow, Asst. Atty. Gen., Nashville, Tenn., for respondents.

MEMORANDUM OPINION AND ORDERS

NEESE, Senior District Judge, Sitting by Designation.

The petitioner applied through pro bono publico-counsel to this Court for the federal writ of habeas corpus. He claims he is in the custody of the respondent-warden pursuant to the judgment of November 20, 1981 of the Criminal Court of Davidson County, Tennessee, division III, and that his detention is in violation of the Constitution of the United States. 28 U.S.C. § 2254(a).^* Annexed to the petitioner's application is his affidavit that he is unable to pay the costs of this proceeding or give security therefor and his statement of his belief that he is entitled to redress. 28 U.S.C. § 1915(a). Therefore, the applicant hereby is

AUTHORIZED to commence and prosecute this proceeding without prepayment of fees or costs or giving security therefor. Id.

The applicant claims the exhaustion of his available state remedies on direct review of his judgment of conviction; he claims such judgment was affirmed on January 18, 1983 by the Court of Criminal Appeals of Tennessee, and that his application to appeal further to the Supreme Court of Tennessee was denied May 9, 1983. (He makes no claim of having applied to the courts of Tennessee under its laws for post-conviction relief.)

If the applicant presented his federal claims on such direct review to the appellate courts of Tennessee, and such were rejected, it is not necessary that he apply again to such Courts for collateral relief on the same issues. Brown v. Allen, 344 U.S. 443, 450, 73 S.Ct. 397, 4042, 97 L.Ed. 469 (1953). It is only where "* * * the States withhold effective remedy, that the federal courts have the power and the duty to provide it * * *." Frazier v. Lane, 446 F.Supp. 19, 255 (D.C.Tenn., per Neese, J., E.D.T., 1977).

"* * * Before an application for the writ of habeas corpus may be granted by the federal court, it must appear in the application that the constitutional questions therein raised have been ruled upon by the state courts. * * *" Application of Ortega, 158 F.Supp. 946, 9484 (D.C.Ill.1957), cert. den. sub nom. Ortega v. Ragen, Etc., 359 U.S. 928, 79 S.Ct. 612, 3 L.Ed.2d 630 (1959). No such showing is apparent in Mr. Beaver's present application. See 28 U.S.C. §§ 2254(b), (c).

"* * * The federal claims must have been fairly presented to the state court. * * * It is not sufficient merely that the federal habeas applicant has been through the state courts. * * * Only if the state courts have had the first opportunity to hear the claims does it make sense to speak of the exhaustion of state remedies. * * *" Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 5121, 30 L.Ed.2d 439 (1971). However, if the applicant does make it appear by amendment or supplement to his petition that such state courts had a full opportunity to determine the federal constitutional issues he seeks to present here, the policies served by the requirement of exhaustion of state-remedies would not be furthered by requiring him to resubmit the identical questions to the state courts. Francisco v. Gathright, 419 U.S. 59, 63, 95 S.Ct. 257, 259, 42 L.Ed.2d 226 (1974).

One ground urged by the applicant relates to the exclusion by the trial judge of certain evidence; the other two grounds relate to an instruction given and the refusal of a requested instruction to his jury. It should be understood that: "* * * The writ of habeas corpus has limited scope; the federal courts do not sit to re-try state cases de novo but rather, to review for violation of federal constitutional standards. * * *" Milton v. Wainwright, 407 U.S. 371, 377, 92 S.Ct. 2174, 21783, 33 L.Ed.2d 1 (1972). A federal constitutional issue would appear not to be implicated in the judicial instruction of the trial judge to the jury, that proof by circumstantial evidence of an element of the crime charged against the applicant required the prosecution to have disproved every reasonable theory except that of the applicant's guilt. Cf. United States v. Battista, 646 F.2d 237, 24618 (6th Cir.1981), (citing Holland v. United States, 348 U.S. 121 , 139-140, 75 S.Ct. 127 , 13723, 99 L.Ed. 150 (1954)), cert. den., 454 U.S. 1046, 102 S.Ct. 586, 70 L.Ed.2d 488 (1981) (but with Justices Brennan and Marshall voting to grant cert. and reverse); cf. (as arguably contra:) United States v. Leon, 534 F.2d 667 (6th Cir.1976) ("A verdict of guilty cannot stand on appeal emphasis added by this writer where the evidence at most established no more than a choice of reasonable probabilities"), distinguished in Battista, supra.

There are no indications on preliminary examination and consideration of the applicant's petition, accordingly, that the petitioner is entitled to relief presently in this Court, if at all, Rule 4, 28 U.S.C. fol. § 2254; but, as the applicant is under a sentence of life-imprisonment and represented by private counsel, this Court does not now order dismissal summarily, id. Law and justice seem to require, and it hereby is

ORDERED:

1. that the respondent-warden file an answer or other pleading within 43 days herefrom, 28 U.S.C. § 2243; Rule 81(a)(2), F.R.Civ.P., the slow movement of the mails noticed providing good cause for such additional time, Rule 4, supra;

2. that the petitioner address by brief, exhibits, etc., the questions posed hereinabove within 20 days;

3. that the clerk serve forthwith a copy of the applicant's petition herein and of this order by certified mail on the respondent-warden and the attorney general and reporter of Tennessee, id. ; and,

4. the applicant may amend or supplement his original brief at will before further action of this Court.

ON THE MERITS

The petitioner Mr. Darryl James Beaver, who is serving a sentence of life-imprisonment for the second-degree murder of his stepfather Mr. David Beaver, seeks the federal writ of habeas corpus, 28 U.S.C. § 2254, attacking his conviction of November 20, 1981 in the Criminal Court of Davidson County, Tennessee. Of the three grounds urged in support of such petition, none entitles Mr. Beaver to any relief in this Court.¹

I.

The petitioner contends that the trial-judge erred in excluding evidence concerning his stepfather's fear or apprehension of third-persons. At trial, the petitioner offered such evidence as reflecting on the state-of-mind of the deceased. In affirming the trial judge's exclusion of such evidence, the state appellate Court discussed the matter thusly:

* * * * * *

First, we are of the opinion that this evidence was not admissible as going to the defendant's theory that some unknown third party had killed the victim. We do not see that the victim's state of mind was relevant or would be probative on the question of whether some third party committed the crime. The evidence was clearly hearsay and was properly excluded by the trial court. See Ashley Ashby v. State, 124 Tenn. 684, 139 S.W. 872 (1911); Williams v. State, 552 S.W.2d 772 (Tenn.Cr.App.1977).

Nevertheless, since the defendant attempted to interpose an alternative defense of suicide by the deceased, then we can see that the victim's state of mind would be a relevant factor for consideration by the jury on the suicide question, and some of the excluded evidence would have been admissible under the "state of mind" exception to the hearsay rule. However, we find that the exclusion of this evidence by the trial court was harmless because the defendant's suicide theory was thoroughly explored before the jury at trial.

An expert called by the defense, Dr. Joseph Fishbine, performed a "psychiatric autopsy" on the victim, and testified at length regarding the doctor's suicidal tendencies. Several witnesses, including the victim's wife and adopted daughter, recounted instances in which the victim had faked suicide, and numerous instances in which he had threatened suicide. The doctor's serious alcohol and drug problems, and his unusual and even bizarre behavior on occasions were all thoroughly explored before the jury.

Even regarding the defendant's theory that someone else killed the victim, we note that the jury also had before it sufficient evidence to weigh and consider this defense theory. Testimony was elicited that the doctor had reported to the police that someone had fired shots at his car and his house. The jury was also made aware that many of the doctor's patients were drug addicts, and that the doctor had a large quantity of firearms and drugs at his house. Further, Tanya Beaver, the victim's estranged wife, testified that the victim always carried four (4) loaded weapons on his person.

From our review of the record, we conclude that there was more than ample evidence in the record to bring to the jury's attention the victim's character and mental state to enable it to properly evaluate the defendant's defense theories. Thus, any of the excluded evidence that should have been admitted would have been cumulative, and its exclusion amounted to no more than harmless error. T.R.A.P. 36(b); Tenn.R.Crim.P. 52(a).

* * * * * *

Opinion of January 18, 1983 at 9-10.

The petitioner fails to explain how the foregoing determination of the state appellate-Court was erroneous or how the excluded evidence was other than cumulative of that already before the jury. He concedes that the evidence admitted at trial "* * * clearly established that Dr. Beaver's life had been in a state of steady deterioration for years and that his medical practice had dwindled to the point that he closed his professional office in Green Hills and began to practice out of his house. * * *" The petitioner asserts also that testimony adduced in...