Bishop v. Rose

• Decision Date: 08 March 1983
• Docket Number: No. 82-5256,82-5256
• Citation: 701 F.2d 1150
• Parties: 12 Fed. R. Evid. Serv. 1450 James William BISHOP, Petitioner-Appellee, v. Jim ROSE, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1150

701 F.2d 1150

12 Fed. R. Evid. Serv. 1450

James William BISHOP, Petitioner-Appellee, v. Jim ROSE, Warden, Respondent-Appellant.

No. 82-5256.

United States Court of Appeals Sixth Circuit.

Argued Dec. 7, 1982.

Decided March 8, 1983.

William M. Leech, Jr., Atty. Gen. of Tenn., David Himmelreich, Asst. Atty. Gen., Nashville, Tenn., for respondent-appellant.

Lionel R. Barrett, Jr., William Redick, Nashville, Tenn., for petitioner-appellee.

Before LIVELY and KRUPANSKY, Circuit Judges, and BROWN, Senior Circuit Judge.

LIVELY, Circuit Judge.

In this habeas corpus action the district court found that the State of Tennessee had interferred with the relationship between the petitioner and his attorney to a degree which violated petitioner's Sixth Amendment right to the effective assistance of counsel, and directed that he be released unless the state grants him a new trial. We affirm.

I.

A.

The district court stated the facts as follows:

Facts

In May 1977 petitioner was tried and convicted of second degree murder and grand larceny in connection with the death and robbery of an elderly Wilson County, Tennessee, woman in August 1976. The State's case against petitioner was based entirely on circumstantial evidence.

Prior to his trial, petitioner was held in the Wilson County jail. While detained there, petitioner, at the request of his defense counsel, Mr. Robert Rochelle, drafted a handwritten statement detailing his activities and whereabouts for the period August 24-31, 1976. The deceased had been murdered, according to the prosecution's estimation, sometime on August 25, 1976. Mr. Rochelle had requested petitioner to draft the statement to help in preparation of petitioner's defense. ²

On March 21, 1977, employees of the Wilson County Sheriff's Department searched the cell in which petitioner was housed as the result of an attempted escape by petitioner's cell mates. (Petitioner himself was not involved in the escape attempt, but the legality of the search is not disputed.) During the search, the employees discovered petitioner's handwritten statement. The Sheriff's employees took the statement and subsequently delivered a copy of it to Mr. R. David Allen, the Wilson County Assistant District Attorney General who was to prosecute petitioner's case. Mr. Allen stated at the evidentiary hearing that he received the statement well in advance of petitioner's trial.

After the search of his cell, petitioner discovered that his handwritten statement had been taken by the Sheriff's employees, objected to its confiscation, and demanded its return. A week later the Sheriff's Department transmitted the statement to Mr. Rochelle, petitioner's attorney.

At petitioner's trial, Mr. Allen, the prosecutor, sought to introduce petitioner's statement as direct evidence. Mr. Allen had read the statement and was aware of its contents. After hearing Mr. Rochelle's objection to the statement's introduction, the trial judge refused its admission as direct evidence.

Although he had disallowed introduction of the statement as direct evidence, the trial judge nevertheless permitted Mr. Allen to utilize it to impeach petitioner during his cross-examination. Petitioner took the stand at trial to testify, and part of his testimony concerning the whereabouts of his wife was inconsistent with his written statement. In the presence of the jury and over the objections of Mr. Rochelle, Mr. Allen used portions of the statement to contradict petitioner's testimony. Referring repeatedly to petitioner's written statement, Mr. Allen's cross-examination of petitioner on that issue went thusly:

[GEN. ALLEN]: In any event, then starting from 4:00 o'clock in the morning on August 25th when you went to bed, 4:00 or 4:30, all the way through the day when you recited, you got up at 11:30, you say, you went to East High Market, you came back and went back to bed. You slept until about 3:00 or 3:30, nothing of consequence happened that day. You say somebody came by to visit Debbie, but she wasn't there and that girl left. You didn't go anywhere else that night until approximately 11:45 P.M. on the night of August 25th when Debbie came home?

A. On Thursday night?

Q. Yes, sir.

A. Correct.

Q. On Wednesday night, sir?

A. Thursday night, sir.

Q. Look to that, sir.

MR. ROCHELLE: Your Honor, objection.

THE WITNESS: Yes, sir, but may I explain something.

Q. Look to that and continue on to the second page until you come down to where it says "Thursday", and then go above Thursday and see if you didn't say, "Debbie came home on Wednesday night about 11:45?"

A. I would like to explain that before I answer this, sir.

Q. Well, I would like for you to answer my question, if you will.

THE COURT: All right. Answer the question.

MR. ROCHELLE: Your Honor, we object to the use of this document here.

GEN. ALLEN: I am not asking him to read it, Your Honor. I am asking him to check that document.

THE COURT: All right. Answer the question, Mr. Bishop.

THE WITNESS: In this document, it does state she came home Wednesday night.

Q. At 11:45?

A. Yes, sir, that is what it states here.

Q. Did she?

A. No, sir. She came home Thursday at 11:45. That statement was taken before it was completed from my hands.

Q. Then what about the statement about a friend of hers coming by that night? Was that statement also for Thursday?

A. No, sir. It was not.

Q. In any event, is it fair to say that basically you can't account for your time on Wednesday, August 25th from 4:00 o'clock in the morning until way on late at night, can you?

MR. ROCHELLE: Your Honor, he is trying to argue it to the Jury now. This man can account for his time. It is up to Gen. Allen to talk about whether that it a proper accounting or not. But this man has accounted...

THE COURT: Overruled. You may ask the question.

Q. You cannot account for your time, sir, from around 4:00--at least 4:00 or 4:30 in the morning when you were home by yourself before you went to bed that morning on Wednesday, weren't you?

A. Yes, sir.

Q. And you say you went to bed at 4:00 or 4:30 Wednesday morning, August 25th?

A. Yes, sir.

Q. And you cannot and have no witness to account for what you did for practically the whole day of August 25th, can you?

A. I cannot prove it by a witness, but I can account for where I was at.

Q. You have no witness that will establish where you were, do you sir?

A. None that I know of.

GEN. ALLEN: Yes, sir. Thats all.

Trial Transcript, 369-372.

The only significance of the time of his wife's return was that on direct examination petitioner had testified she returned home on Thursday night whereas the document stated that she returned on Wednesday. Though it is clear that the document was used for impeachment purpose, the trial court did not give a limiting instruction at the time of its ruling or in its general charge to the jury.

B.

In his motion for a new trial the petitioner relied upon the seizure of the document, the trial court's failure to read the document and to hear all proof offered on the issue before ruling on petitioner's motion to dismiss for invasion of the attorney-client relationship, and its permitting the prosecutor to use the document in cross-examination. The trial court overruled the motion without making any findings or conclusions with respect to the issues raised.

In the Tennessee Court of Criminal Appeals the petitioner included four separate assignments of error relating to the seizure and use of the 14-page document. Assignment # 5 stated, "The Court erred in allowing the State to cross-examine the Defendant by reading from and referring to the privileged confidential communication between the Defendant and his attorneys."

In its opinion the Tennessee Court of Criminal Appeals dealt with the attorney-client issue as follows:

Defendant says he was denied due process and the right to effective assistance of counsel because a document he categorizes as a confidential communication between him and his counsel was seized from his jail cell. On March 21, 1977, prior to his trial on May 2nd, while defendant was incarcerated in Wilson County Jail, a jail break was attempted by other inmates in the cell. This brought about a search in which, among other things, a document prepared by defendant was seized by sheriff's deputies. The instrument was a day by day account of defendants' actions for several days prior and subsequent to the date of the homicide. He claimed this was prepared at the request of his attorney for use in his defense. Copies were made and turned over to investigating officers. The original was turned over to his attorney on the 28th of March, approximately one week after it was taken from his cell. It was defendant's argument that any effort to establish an alibi defense had been prejudiced by disclosure of the contents of the document to the investigating officers and the district attorney general. The trial judge declined to allow the State to admit the document into evidence on direct examination but subsequently allowed its use for cross-examination of the defendant. We find no fault with that judgment. It is conceded that the authorities had the right to search the cell after the attempted escape came to their attention. Certainly they had a right to examine whatever may have been found there. There was no indication in the paper writing that it was a confidential instrument of any nature. It was not essential for the court to read the document in question to rule on the legality of the seizure or its temporary retention by the authorities. At the hearing defendant proposed to introduce witnesses to show that the officers made copies of the instrument before turning it over to his attorney. The court did not question that fact. Defendant does not show in what manner he was prejudiced. The document was not addressed to anyone. It was unsigned. It was not incriminating in any sense other than it indicated defendant had been to the victim's home prior to...