Evans v. Cowan
| Decision Date | 05 December 1974 |
| Docket Number | No. 74-1520,74-1520 |
| Citation | 506 F.2d 1248 |
| Parties | Frank Luther EVANS, Petitioner-Appellant, v. Henry E. COWAN, Warden, Kentucky State Prison, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Frank Luther Evans, pro se.
Anthony M. Wilhoit, Public Defender, David E. Murrell, Deputy Public Defender, Frankfort, Ky., for petitioner-appellant.
Ed W. Hancock, Atty. Gen. of Kentucky, Frankfort, Ky., Thomas E. Emerson, Asst. Atty. Gen., for respondent-appellee.
Before CELEBREZZE, PECK and MILLER, Circuit Judges.
Petitioner-appellant perfected this appeal from the denial of his petition for a writ of habeas corpus directed to his conviction at jury trial under a two-count indictment charging him with armed robbery and with being a habitual criminal. For the reasons hereinafter appearing, the judgment of the district court is reversed.
Appellant was indicted under Kentucky law for armed robbery 1 and for being a habitual criminal 2 because of four prior felony convictions (consisting of nine separate counts). Prior to trial, appellant moved that there be a bifurcated trial with the habitual criminal charge being tried separately from the charge of armed robbery. He also moved that no evidence of the prior convictions be admitted during the trial on the principal offense. The trial court denied both motions. Appellant then notified the court that he wished to make 'a continuing objection to all evidence of his previous criminal record during the Commonwealth's Proof in Chief.' During the course of the trial the state introduced evidence of appellant's prior felony convictions. Appellant failed to request and the court did not of its own volition give an instruction admonishing the jury not to consider the evidence of prior convictions in determining guilt or innocence on the primary charge. Appellant did not take the stand.
Appellant challenges the constitutionality of the admission of evidence of prior felony convictions during the trial on the principal charge of armed robbery. He argues that he was prejudiced by the introduction of four previous convictions when the statute requires proof of no more than two. He further complains that no limiting instruction was given to the jury in connection with this evidence.
The Supreme Court of the United States has said that the constitutionality of the practice of inflicting more severe criminal penalties upon habitual offenders is no longer open to serious challenge. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). The Kentucky Court of Appeals has upheld the statute in question under various constitutional attacks. Wilson v. Commonwealth, 403 S.W.2d 705 (Ky.1966); Jones v. Commonwealth, 401 S.W.2d 68 (Ky.1966); Adamson v. Hoblitzell, 279 S.W.2d 759 (Ky.1955); Lovan v. Commonwealth, 261 Ky. 198, 87 S.W.2d 381 (1935). Furthermore, the habitual criminal issue may be combined with the trial of the felony charge even though it is a separate and distinct issue. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Stewart v. Commonwealth, 479 S.W.2d 23 (Ky.1972). There is also authority for the proposition that any number of prior convictions may be admitted into evidence. United States ex rel. Bolish v. Maroney, 409 F.2d 1404, 1405 (3rd Cir.), cert. denied, 396 U.S. 893, 90 S.Ct. 187, 24 L.Ed.2d 168 (1969); McGill v. Commonwealth, 365 S.W.2d 470 (Ky.1969).
In Spencer v. Texas, supra, the Supreme Court closely examined the Texas practice of informing the jury of the prior convictions before the determination of the primary charges and found that it necessarily resulted in prejudice to the defendant. However, the prejudicial effect was held to be 'justified on the grounds that . . . the jury is expected to follow instructions in limiting this evidence to its proper function . . ..' 385 U.S. at 562, 87 S.Ct. at 653. Said instruction contemplates an admonition not to consider the previous convictions as evidence of guilt on the primary charge. This safeguard instruction doctrine is not a stranger to Kentucky law. Lynch v. Commonwealth, 472 S.W.2d 263, 266 (Ky.1971).
In the instant case the jury was not instructed on the permissible uses of the evidence of previous convictions. The state suggests that appellant's failure to request a limiting instruction precludes him from raising this point...
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Martin v. Wilson
...law and evidence of a prior conviction is presented to the jury. See Dawson v. Cowan, 531 F.2d 1374 (6th Cir.1976); Evans v. Cowan, 506 F.2d 1248 (6th Cir.1974). Other federal Circuits have not similarly construed Spencer. See, e.g., Christian v. Housewright, 721 F.2d 240, 242 n. 4 (8th Cir......
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Williams v. Armontrout
...enhance the range of punishment where the failure to give a limiting evidence has been found to be reversible error. See Evans v. Cowan, 506 F.2d 1248 (6th Cir.1974). 3 Read in context and with Garber's testimony on page 205, Respondent's Exhibit F-2, the reference to "Pam Mealy" on line 15......
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State v. Murray
...is so prejudicial that it constitutes plain error. Id. at 591 (citing Dawson v. Cowan, 531 F.2d 1374 (6th Cir. 1976); Evans v. Cowan, 506 F.2d 1248, 1249 (6th Cir.1974)). In both Dawson and Evans, which involved the admission of prior convictions, the defendant failed to request a limiting ......
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People v. Peterson
...the issue of a defendant's guilt. The vitality of the Spencer rationale was demonstrated again by a 1974 federal decision (Evans v. Cowan, 6 Cir., 506 F.2d 1248). In that case, the appellant was indicted for armed robbery and for being an habitual criminal. Prior to trial, he moved for a bi......