Eberhardt v. Bordenkircher, No. 78-3588

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore ENGEL and MERRITT, Circuit Judges, and PECK; JOHN W. PECK
Decision Date10 September 1979
PartiesGeorge Bernard EBERHARDT, Petitioner-Appellant, v. Donald E. BORDENKIRCHER, Warden, Kentucky State Penitentiary, Respondent- Appellee.
Docket NumberNo. 78-3588

Page 275

605 F.2d 275
George Bernard EBERHARDT, Petitioner-Appellant,
v.
Donald E. BORDENKIRCHER, Warden, Kentucky State
Penitentiary, Respondent- Appellee.
No. 78-3588.
United States Court of Appeals,
Sixth Circuit.
Argued April 10, 1979.
Decided Sept. 10, 1979.

Page 276

Terrence R. Fitzgerald, Deputy Public Defender, Chief App. Defender, Louisville, Ky. (Court-appointed), for petitioner-appellant.

George Bernard Eberhardt, pro se.

Robert F. Stephens, Atty. Gen. of Kentucky, John F. Zink, Asst. Atty. Gen., Frankfort, Ky., for respondent-appellee.

Before ENGEL and MERRITT, Circuit Judges, and PECK, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge.

The principal issue in this appeal is how the harmless error standard is to be applied in habeas corpus review of state court convictions, when the error involved was a comment by the prosecutor on the defendant's failure to take the stand, in violation of the rule laid down in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). In 1975, petitioner George Eberhardt was found guilty by a Kentucky jury of one count of armed robbery. On appeal, the Kentucky Supreme Court affirmed his conviction, relying primarily on a harmless error analysis. The court held that there had been prosecutorial misconduct in the course of the trial, and that the introduction of a "mug shot" of the defendant into evidence without a cautionary instruction was error, but that "in view of the strong evidence indicating appellant's guilt and the imposition of the minimum sentence," the errors were not prejudicial. The Kentucky Supreme Court went on to hold that it was not clear from the record whether the prosecutor, in his closing argument, had made remarks which were "reasonably certain to direct the jury's attention to the defendant's failure to testify," but that even if he had, any error was "nonprejudicial."

Eberhardt then turned to the federal courts for relief, filing a petition for the writ of habeas corpus, asserting the errors discussed by the state supreme court as grounds for relief. * The district court

Page 277

dismissed the petition, concluding that the prosecutorial misconduct and use of police file photographs were not constitutional errors, and thus not grounds for federal habeas corpus relief. As for the asserted Griffin error, the district court held that it could "accept the finding of the Supreme Court of Kentucky" that the remark was harmless error, and would rely upon the apparent conclusion of the trial judge that it did not require a mistrial.

In our view, resolution of the issues in this case turns upon the question of how the harmless error issue is decided. We believe that there was a clear violation of the Griffin prohibition of any prosecutorial comment on the defendant's failure to take the stand. The further question of whether that error was harmless necessitates an explanation both of the underlying crime and the conduct of the trial. We set out that background before returning to a discussion of the Griffin issue.

THE ROBBERY AND EBERHARDT'S TRIAL

On October 7, 1974, two men robbed a Save-a-Step Food Market in Louisville, Kentucky, of approximately $200. One of the two was a young man named Michael Gant, who subsequently pled guilty to the crime. The other was an older man, alleged by the State to be Eberhardt. The robbery occurred about 11 p. m., and only the night manager and another employee were in the store at the time. The robbery lasted only a matter of minutes, and no one was hurt, though the older man was armed.

A few days later, the two Save-a-Step employees were shown a book of mug shots selected from the files of the Louisville police department, and clearly so marked. Both men selected the photograph of Eberhardt as the older robber.

At about the same time, Phillip Banks was arrested. Banks signed a statement confessing to being the driver of the getaway car the night of the robbery, and naming Gant and Eberhardt as the other two involved. Banks also subsequently pled guilty.

At trial, the State presented the two employees as its principal witnesses, both of whom described the robbery and identified Eberhardt as the older robber. Through the officer who had handled the identification procedure, the collection of mug shots was received into evidence and the defendant's picture identified for the jury, over the defendant's objection. No limiting instruction was given.

The State also called Banks to the stand, but while he freely admitted his involvement in the robbery, he disavowed the statement he had signed, testifying instead that Eberhardt was not involved. The third man, he testified, was a friend of Gant named "Dusty" whom he had met in a neighborhood bar. Banks' prior inconsistent statement was admitted into evidence.

Eberhardt presented an alibi defense, through his landlady and one of his roommates, that he was driving back from Cleveland at the time of the robbery. In the course of cross-examination, and apparently without any foundation in fact, the prosecutor asked the roommate how much he was "getting paid for your testimony today." An objection was sustained and the question withdrawn, but the judge did not admonish the jury to disregard the comment. The defense also put Gant on the stand, who corroborated Banks' testimony that the third man was not Eberhardt but was "Dusty," whom Gant had met a few times in a bar.

During his closing argument, the prosecutor again referred to the possibility that the defendant had "bought off" his witnesses,

Page 278

inviting the jury to conjecture about how the roommate would be rewarded for his testimony. This time, the defendant's prompt objection and motion for a mistrial was overruled.

A few moments later, the prosecutor began an argument which should always raise a red flag warning that the limits of permissible argument are fast being approached. He began by criticizing the inadequacy of the witnesses presented by...

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87 practice notes
  • Ogle v. Mohr, Case No. 2:15-cv-776
    • United States
    • U.S. District Court — Southern District of Ohio
    • March 10, 2017
    ...See Engle v. Isaac, 456 U.S. 107 (1982); Turoso v. Cleveland Municipal Court, 674 F.2d 486 (6th Cir. 1982); Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979); Weston v. Rose, 527 F.2d 524 (6th Cir. 1975). When the evidence presented does not support a requested jury instruction and t......
  • Dalmida v. Warden, Toledo Corr. Inst., Case No. 1:17-cv-488
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • April 11, 2019
    ...See Engle v. Isaac, 456 U.S. 107 (1982); Turoso v. Cleveland Municipal Court, 674 F.2d 486 (6th Cir. 1982); Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979); Weston v. Rose, 527 F.2d 524 (6th Cir. 1975). Petitioner cites no Supreme Court holding to the effect that failure to instruc......
  • Gall v Parker, 6
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 30, 2000
    ...beyond a reasonable doubt that the error did not contribute in any way to the conviction of the defendant." Eberhardt v. Bordenkircher, 605 F.2d 275, 278 (6th Cir. Gall points to two occasions where the Commonwealth improperly referred to his silence at trial. First, an officer testified th......
  • Gall v. Parker, Nos. 91-5502
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 3, 1999
    ...beyond a reasonable doubt that the error did not contribute in any way to the conviction of the defendant." Eberhardt v. Bordenkircher, 605 F.2d 275, 278 (6th Cir. Gall points to two occasions where the Commonwealth improperly referred to his silence at trial. First, an officer testified th......
  • Request a trial to view additional results
87 cases
  • Ogle v. Mohr, Case No. 2:15-cv-776
    • United States
    • U.S. District Court — Southern District of Ohio
    • March 10, 2017
    ...See Engle v. Isaac, 456 U.S. 107 (1982); Turoso v. Cleveland Municipal Court, 674 F.2d 486 (6th Cir. 1982); Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979); Weston v. Rose, 527 F.2d 524 (6th Cir. 1975). When the evidence presented does not support a requested jury instruction and t......
  • Dalmida v. Warden, Toledo Corr. Inst., Case No. 1:17-cv-488
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • April 11, 2019
    ...See Engle v. Isaac, 456 U.S. 107 (1982); Turoso v. Cleveland Municipal Court, 674 F.2d 486 (6th Cir. 1982); Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979); Weston v. Rose, 527 F.2d 524 (6th Cir. 1975). Petitioner cites no Supreme Court holding to the effect that failure to instruc......
  • Gall v Parker, 6
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 30, 2000
    ...beyond a reasonable doubt that the error did not contribute in any way to the conviction of the defendant." Eberhardt v. Bordenkircher, 605 F.2d 275, 278 (6th Cir. Gall points to two occasions where the Commonwealth improperly referred to his silence at trial. First, an officer testified th......
  • Gall v. Parker, Nos. 91-5502
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 3, 1999
    ...beyond a reasonable doubt that the error did not contribute in any way to the conviction of the defendant." Eberhardt v. Bordenkircher, 605 F.2d 275, 278 (6th Cir. Gall points to two occasions where the Commonwealth improperly referred to his silence at trial. First, an officer testified th......
  • Request a trial to view additional results

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