Britton v. Rogers, s. 79-1862

• Decision Date: 02 October 1980
• Docket Number: 79-1896,Nos. 79-1862,s. 79-1862
• Citation: 631 F.2d 572
• Parties: 7 Fed. R. Evid. Serv. 119 R. G. BRITTON et al., Appellant-Cross Appellee, v. Harold Eugene ROGERS, Appellee-Cross Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 572

631 F.2d 572

7 Fed. R. Evid. Serv. 119

R. G. BRITTON et al., Appellant-Cross Appellee, v. Harold Eugene ROGERS, Appellee-Cross Appellant.

Nos. 79-1862, 79-1896.

United States Court of Appeals,

Eighth Circuit.

Submitted April 17, 1980.

Decided Oct. 2, 1980.

Steve Clark, Atty. Gen., by E. Alvin Schay, Dennis R. Molock, argued, Asst. Attys. Gen., Little Rock, Ark., for Britton.

Charles E. Carter, George E. Hairston, James I. Meyerson, Asst. Gen. Counsel, argued, New York City, N.A.A.C.P., George Van Hook, Jr., El Dorado, Ark., Leon Jamison, Pine Bluff, Ark., for Rogers.

Before STEPHENSON, Circuit Judge, KUNZIG, ^* Judge, and McMILLIAN, Circuit Judge.

KUNZIG, Judge.

This is an appeal from an order of the federal district court ¹ granting a writ of habeas corpus. Appellee-cross appellant Rogers had been sentenced to life imprisonment by an Arkansas jury upon his conviction for first-degree rape. The parties have raised several questions under the due process, equal protection and cruel and unusual punishments clauses of the United States Constitution, in particular, the question whether sentencing guidelines are mandated in a non-capital case. For the reasons hereafter stated, we find no constitutional defect in Rogers' conviction or sentence and therefore no basis to release him from prison.

I. Procedural History

In 1973, appellee-cross appellant Harold Eugene Rogers was convicted by an Arkansas jury of rape in the first degree, Ark.Stat.Ann. § 41-3401 (Supp.1973), and was sentenced to life imprisonment by the jury. Rogers appealed his conviction to the Arkansas Supreme Court, which affirmed. Rogers v. State, 257 Ark. 144, 515 S.W.2d 79 (1974). Subsequently, the United States Supreme Court denied his petition for certiorari. Rogers v. Arkansas, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1974).

In 1977, Rogers petitioned the United States District Court for the Eastern District of Arkansas for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1976). The district court dismissed with prejudice all but one of the grounds alleged in his petition. Rogers v. Britton, 466 F.Supp. 397 (E.D.Ark.1979). Rogers' remaining ground alleged cruel and unusual punishment in violation of the eighth and fourteenth amendments to the federal constitution. The district court held that Rogers had not yet exhausted his state remedies concerning the duration of the sentence or the propriety of the sentencing process. Accordingly, he was directed to file an application for post-conviction relief with the Arkansas Supreme Court. Rogers' habeas petition in the federal district court was held pending the outcome of the application to the state court.

Ultimately, the Arkansas Supreme Court ruled against Rogers on all his state law claims. Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979) (per curiam) (en banc). He returned to the federal district court, reasserting his claim that his punishment was unlawful under the eighth and fourteenth amendments. The district court sustained Rogers' position, holding that his life sentence was constitutionally defective because the Arkansas jury had not been given instructions or standards to guide its sentencing discretion. Rogers v. Britton, 476 F.Supp. 1036 (E.D.Ark.1979). Accordingly the district court granted the writ of habeas corpus. The court, however, did not order Rogers' immediate release from custody. Instead, it ordered that he would be entitled to release upon the expiration of thirty years from the date of his conviction, the minimum penalty prescribed by Arkansas law for the crime of first-degree rape at the time when the crime was committed. The court further ordered that Arkansas could retry the issue of Rogers' punishment in order to obtain a longer sentence, provided the second trial included sentencing guidelines.

Both Rogers and Britton, petitioner and respondent, respectively, in the habeas proceeding below, have appealed to this court from the lower court decisions and order. For purposes of exposition, "Britton" will henceforth be referred to as "Arkansas".

Our jurisdiction rests upon 28 U.S.C. §§ 1291 and 2253 (1976).

II. Legal Issues

Both Rogers and Arkansas assert a number of grounds in challenging the order of the federal district court.

Rogers' grounds are as follows:

1) that the district court erroneously concluded that Rogers' constitutional right to a fair trial had not been infringed by the admission of the testimony of a witness claiming to be the victim of another rape perpetrated by Rogers; and

2) that the district court erroneously concluded that Rogers had failed to prove racially discriminatory sentencing, violative of the equal protection clause of the constitution.

Arkansas' grounds are as follows:

1) that the district court erroneously concluded that Rogers' sentence, under all the circumstances of this case, was so disproportionate and excessive as to be cruel and unusual under the eighth and fourteenth amendments; and

2) that the district court erroneously concluded that the lack of sentencing guidelines to the jury rendered the sentencing process and resulting sentence constitutionally defective under the eighth and fourteenth amendments.

We reject each of Rogers' grounds and generally sustain the position of Arkansas. Accordingly, we conclude that there was no basis for granting an order of habeas corpus in this case.

III. Analysis

A. Rogers' Grounds

1. Other Crimes Testimony

It is a tenet of the law of evidence that relevant evidence will be excluded if its probative value is outweighed by the danger of unfair prejudice. See, McCormick's Handbook of the Law of Evidence § 185, at 438-439 (2d ed. 1972). A second important principle, derived from the first, is that evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. "Other crimes" evidence may be admitted, however, when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Id. § 190, at 447-451. When offered for these other, more sharply defined purposes, probative value can outweigh the danger of unfair prejudice.

At Rogers' trial, the court admitted the testimony of a witness claiming to be the victim of another rape perpetrated by Rogers. The circumstances of both attacks were strikingly similar and the trial court ruled the evidence relevant and admissible on the issue of identity. On appeal, the Arkansas Supreme Court affirmed this ruling, following the general principles sketched above. Rogers v. State, 257 Ark. 144, 515 S.W.2d 79, cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1974).

In the habeas proceeding below, Rogers complained again of the admission of the other crimes testimony, arguing that the testimony was unfairly prejudicial and infringed his constitutional right to a fair trial. The predicate for successfully raising this claim is a showing of gross or conspicuous prejudice. See, Maggitt v. Wyrick, 533 F.2d 383, 385 (8th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976); Atwell v. Arkansas, 426 F.2d 912, 914-915 (8th Cir. 1970). The federal district court concluded that Rogers had failed to make the requisite factual showing, finding that the other crimes testimony was "not so inflammatory and prejudicial as to outweigh its clear relevance on the identity issue." Rogers v. Britton, 466 F.Supp. 397, 400 (E.D.Ark.1979). Consequently, Rogers' legal claim was denied.

Our scope of review on factual questions is limited. The court of appeals does not retry issues of fact or substitute its judgment for that of the trial court. Instead, it is our function to determine whether the findings below were supported by substantial evidence. See, Shultz v. Nebraska, 353 F.2d 81, 82 (8th Cir. 1965) (per curiam). In our opinion, the finding of the lower court in this case was supported by substantial evidence. Several factors lead to this conclusion.

First, the identity of the rapist was clearly in issue. The prosecuting witness had been blindfolded while being abducted and raped and could not make a positive identification. Another witness testified that he saw Rogers and a white woman (Rogers is black) at the scene of the crime together in a car similar to that of the rape victim. Although probative, the latter piece of evidence could not safely have been relied upon by the prosecution to establish beyond a reasonable doubt that Rogers was the rapist. See generally, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Second, the circumstances of the rape for which Rogers was on trial and the rape as to which the witness was testifying were strikingly similar and tended to mark both attacks as the deed of Rogers. See, McCormick's Handbook of the Law of Evidence § 190, at 449 (2d ed. 1972). The witness identified Rogers as the man who raped her the night after the prosecutrix was attacked. The victims of both alleged rapes were returning to their cars at night from a grocery store when a black man, at gunpoint, abducted, blindfolded and forced each to put her head down as he drove each to a garage where the rape was perpetrated.

Rogers contends that the witness' testimony was inherently unreliable because there had been a hung jury in a previous trial of the alleged rape as to which she testified. We know of no rule of law supporting such a contention. A hung jury hardly renders the testimony of the prosecutrix inherently unreliable, especially in the absence of any indication from the jury as to the issues upon which it could not reach agreement.

Finally, the jury at Rogers' trial was explicitly instructed prior to commencing its deliberations that the witness' testimony was admitted solely for the purpose of establishing identity and should be considered only for that purpose.

In light of the foregoing, the lower court's...