Corbett v. Bordenkircher, 78-3672
| Decision Date | 22 February 1980 |
| Docket Number | No. 78-3672,78-3672 |
| Citation | 615 F.2d 722 |
| Parties | James J. CORBETT, Petitioner-Appellant, v. Donald E. BORDENKIRCHER, Superintendent, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William M. Radigan, Asst. Public Defender, Frankfort, Ky., for petitioner-appellant.
James Jay Corbett, pro se.
Robert F. Stephens, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, Ky., for respondent-appellee.
Before WEICK, KEITH and BAILEY BROWN, Circuit Judges.
In this habeas action, petitioner, James J. Corbett, who was convicted of burglary and of being an habitual offender and received a life sentence in 1975 in the circuit court of Henderson County, Kentucky, contends that in his state trial and in the penalty imposed he was deprived of federal constitutional rights. He has exhausted his state remedy by direct appeal. Corbett also contends that the federal district judge, Honorable James F. Gordon, who heard and denied his habeas petition, further erred in dismissing his petition without an evidentiary hearing and without reviewing the transcript of the state trial. We conclude that Corbett is not entitled to habeas relief or to a remand to the district court and therefore affirm the decision of the district court.
Corbett was indicted, along with Charles Edward Jenkins, in a nine count indictment. In counts 1, 2 and 3 they were charged with burglary of the sporting goods store of Nettie Greenwell, burglary of a storehouse at the Ratiki Coal Mine and burglary of the dwelling house of Malcolm Neal. In count 4 they were charged with conspiracy to obstruct justice by concealing evidence of the murder of William Curtis Miller. In count 5, Jenkins alone was charged with stealing Miller's truck after the murder, and in count 6 Corbett alone was charged with harboring and assisting a felon (i. e. a murderer of Miller). In count 7, Corbett was charged with receiving property stolen from Miller shortly after he was murdered. Finally, Jenkins and Corbett were charged in counts 8 and 9 with being habitual criminals.
The state trial court directed a verdict for Corbett as to all counts except the habitual criminal count and count 2 (burglary of storehouse at Ratiki Coal Mine), as to both of which, as stated, Corbett was convicted.
To place this case in perspective, it is necessary to refer to a related habeas case prosecuted by Jenkins but which involved the conviction of Jenkins in another criminal prosecution for the murder and robbery of Miller. That criminal case was tried in the circuit court of Henderson County by the same Judge, and the trial occurred shortly before Corbett's trial with Jenkins in the case that gave rise to the habeas action now before us. Anthony Svara was indicted along with Jenkins for the robbery and murder of Miller. Jenkins, as stated, was convicted of murder and armed robbery, and Svara was convicted of murder. Jenkins was denied relief on direct appeal, and after denial of habeas relief in federal district court, prosecuted an appeal to this court that has been decided. (Jenkins v. Bordenkircher, 611 F.2d 162 (1979)). Svara withdrew his direct appeal of his conviction, and he was a witness for the prosecution in the subsequent trial of Corbett and Jenkins.
Prior to his trial in state court, Corbett moved, supported by affidavit, to have the trial judge recuse himself because the judge had, in the past as a county attorney and as a commonwealth attorney, prosecuted him for crimes in four instances, the first in 1962 and the last in 1970, one of which convictions was relied upon as a basis for charging Corbett with being an habitual offender. The contention was and is that recusal was required because the judge was likely to be prejudiced against Corbett or that, in any event, the judge's prior prosecution of him gives the appearance of an inability to be impartial. There was no allegation that the judge was actually prejudiced against Corbett. Moreover, in the habeas petition supported by memorandum in the district court, no allegation was made that the judge actually demonstrated prejudice against Corbett.
In this context, then, the question raised is whether we must apply a per se rule and hold that simply because a trial judge has prosecuted a defendant in the past in performing his duty as a public official, due process requires that the judge recuse himself. This question can be answered quickly so far as this Circuit is concerned because in Jenkins v. Bordenkircher, supra, which dealt with the same claim made by Jenkins at his murder and robbery trial, he also having in the past been prosecuted by the same trial judge, this court refused to adopt such a per se rule. Accordingly, we hold that Corbett was not denied due process by the severance of the trial judge to recuse himself.
In the state court, Corbett moved for a severance for trial of the burglary counts (counts 1, 2, and 3) from the other counts having to do with concealing evidence of the murder of Miller, harboring a felon and receiving property stolen from Miller, on the ground that, if all the counts were tried together, his trial would not be fair and therefore he would be denied due process. He contended that the burglary counts involved facts that were unrelated to the facts surrounding the murder of Miller, and points out that, after insisting that the severance be denied, the prosecution applied for and received approval of the trial court to have Svara first testify about the burglary counts, leave the witness stand, and then testify later as to counts related to the murder of Miller. As before stated, all the counts were tried together, the trial court directed a verdict as to all counts except burglary of the Ratiki coal mine storehouse and habitual offender, and the jury convicted Corbett as to these counts.
It should be pointed out that the issue before this court, of course, is not whether the failure to sever these counts for trial was a violation of a rule of procedure (state or federal); rather the issue is whether the failure to sever denied to Corbett due process of law under the Fourteenth Amendment. Although there are many federal district court decisions applying the severance rules contained in the Federal Rules of Criminal Procedure and although there are many federal courts of appeal decisions, exercising supervisory powers, interpreting those same rules, there are few federal decisions dealing directly with the issue of due process as applied to severance of counts for trial under the Fifth Amendment in the federal courts or under the Fourteenth Amendment in the state courts. We therefore believe it would be helpful, initially, to examine how the problem has been dealt with other than as a constitutional question but by courts that of necessity implicitly recognized that due process sets the outer perimeters of permissible joinder of counts for trial.
The issue raised by a motion to sever counts for trial is akin to that dealt with under the rules of evidence that have to do with proof of other crimes. (See: United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977)). Because of the prejudicial effect to a defendant of proof of other crimes (see below), such is not generally allowed but may be allowed to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Federal Rules of Evidence, Rule 404(b). We point this out to show that under such Federal Rules, which have been approved by the Supreme Court, while the evidence of other crimes is generally proscribed, there are many exceptions to the rule.
The inherent possible prejudice to a defendant of joinder of counts for trial is well described in United States v. Foutz, 540 F.2d 733 (4th Cir. 1976) as follows (at 736):
In the instant case, joinder was initially permissible only because the offenses were of the same or similar character. When two or more offenses are joined for trial solely on this theory, three sources of prejudice are possible which may justify the granting of a severance under Rule 14: (1) the jury may confuse and cumulate the evidence, and convict the defendant of one or both crimes when it would not convict him of either if it could keep the evidence properly segregated; 1 (2) the defendant may be confounded in presenting defenses, as where he desires to assert his privilege against self-incrimination with respect to one crime but not the other; 2 or (3) the jury may conclude that the defendant is guilty of one crime and then find him guilty of the other because of his criminal disposition. (Footnotes omitted)
In spite of this danger inherent in joinder of counts for trial, the Federal Rules of Criminal Procedure, Rule 8(a), broadly provides for joinder as follows:
(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. 1
Rule 14, Fed.R.Cr.P., of course, provides for severance for trial where prejudice is shown even where there has been a proper joinder of counts in an indictment under Rule 8(a). 2 However, a trial court will be overruled for failure to grant a severance for trial under Rule 14 only if there has been an abuse of discretion. As is stated in Jamar, supra, at 1106:
In ruling on a motion for severance, the trial court is vested with discretion; it must carefully weigh the possible prejudice to the accused against the often equally compelling interests of the judicial process, which include the avoidance of needlessly duplicative trials involving substantially...
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