Hockenbury v. Sowders, 79-3339

• Citation: 620 F.2d 111
• Decision Date: 17 April 1980
• Docket Number: No. 79-3339,79-3339
• Parties: Murrell Toby HOCKENBURY, III, Petitioner-Appellee, v. Dewey SOWDERS, Superintendent, Kentucky State Penitentiary, Respondent- Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 111

620 F.2d 111

Murrell Toby HOCKENBURY, III, Petitioner-Appellee, v. Dewey SOWDERS, Superintendent, Kentucky State Penitentiary Respondent- Appellant.

No. 79-3339.

United States Court of Appeals Sixth Circuit.

Argued Feb. 1, 1980.

Decided April 17, 1980.

Barbara B. Edelman, Asst. Atty. Gen., Frankfort, Ky., for respondent-appellant.

Larry H. Marshall, Asst. Public Advocate, Frankfort, Ky., for petitioner-appellee.

Before WEICK, MERRITT and KENNEDY, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

Respondent appeals the District Court's grant of petitioner's Writ of Habeas Corpus. Petitioner was convicted in Warren Circuit Court, Kentucky of first degree robbery, in violation of KRS § 515.020. The District Court found that questions by the prosecutor of defendant and certain comments by the prosecutor in final argument were, in effect, a reference to post arrest silence impermissible under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Petitioner had waived his Miranda rights and made a statement to the arresting officers regarding his whereabouts at the time of the robberies. When this proved incorrect, he told the officers that he did not recall where he was. At trial he testified he was with friends and family members who also provided alibi testimony.

The respondent's first argument on appeal is that the petitioner's claim was not properly reviewable by the District Court because it was not properly preserved by an objection, as required by Kentucky law. This argument is based, in large part, on Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), in which the Supreme Court held that the failure to comply with a state's contemporaneous objection requirement which precludes direct review likewise precludes federal habeas corpus review absent a showing of "cause" and "prejudice". This failure to comply with the state's contemporaneous objection requirement amounts to an independent and adequate state procedural ground for affirming the conviction with regard to that issue. Wainwright, supra, 433 U.S. at 81-82, 86-87, 97 S.Ct. at 2503-2504, 2506. In deciding Wainwright, the Supreme Court specifically rejected the application of the sweeping language in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), to a defendant's failure to raise objections at the trial court level to the admission of a confession. Wainwright, supra, 433 U.S. at 87-88, 97 S.Ct. at 2506-2507. The rule in Fay v. Noia, supra, had been read by this Court and others as allowing federal habeas corpus review, in spite of a defendant's failure to comply with the state's contemporaneous objection requirement, unless the defendant had attempted a "deliberate bypass" of the state court procedure. See Minor v. Black, 527 F.2d 1, 4-5 (6th Cir. 1975), cert. denied, 427 U.S. 904, 96 S.Ct. 3189, 49 L.Ed.2d 1198 (1976). The decision in Wainwright appears to now preclude such a broad reading of the rule in Fay v. Noia.

Among the reasons cited by the Supreme Court for rejecting the "deliberate bypass" rule and requiring deference to states' contemporaneous objection requirements, in the absence of a showing of "cause" and "prejudice", are the following: (1) A contemporaneous objection requirement allows the record of the constitutional claim to be made when the recollections of the witnesses are freshest, rather than years later in a federal habeas habeas corpus proceeding. (2) It allows the judge who observed the demeanor of the relevant witnesses to make the factual determinations necessary for deciding the federal constitutional question. (3) Contemporaneous objections give the trial court an opportunity to cure the claimed error, thereby making a major contribution to the finality of criminal litigation. (4) Compliance with a contemporaneous objection rule may cause the prosecution to reassess its request for the admission of evidence when confronted with claims which would indicate the possibility of reversal by the state appellate courts or upon federal habeas corpus review. (5) The rule in Fay v. Noia could encourage "sandbagging" on the part of defense lawyers who wish to take their chances on the verdict of the initial jury, intending to raise their constitutional claims and obtain a new trial through federal habeas corpus proceedings if the initial verdict is unfavorable. Wainwright, supra, 433 U.S. at 88-89, 97 S.Ct. at 2507.

The merits of deferring to states' contemporaneous objection requirements were summarized by the Court as follows:

The failure of the federal habeas courts generally to require compliance with a contemporaneous-objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the courtroom, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification.

Wainwright, supra, 433 U.S. at 90, 97 S.Ct. at 2508.

It is undisputed that petitioner's trial counsel did not object to the questions and arguments which are the subject of the instant Petition for Writ of Habeas Corpus. This Court must first determine whether Kentucky's contemporaneous objection rule precluded petitioner from raising on direct appeal the issues he now raises. If so, Wainwright precludes federal habeas corpus review in the absence of a showing of "cause" and "prejudice".

Kentucky's contemporaneous objection requirement precludes appellate review of matters which are not objected to, unless manifest injustice results. Ferguson v. Commonwealth, 512 S.W.2d 501 (Ky.1974); Stone v. Commonwealth, 456 S.W.2d 43 (Ky.1970). When the Kentucky Supreme Court reviewed petitioner's claims on direct appeal, it noted the factual distinctions between this case and Doyle v. Ohio, supra, and then ruled that the defendant's failure to object to the claimed error precluded its consideration on appeal. Hockenbury v. Commonwealth, 565 S.W.2d 448 (Ky.1978). This decision is consistent with other Kentucky decisions addressing a defendant's failure to object to similar statements and comments made by the prosecution. Salisbury v. Commonwealth, 556 S.W.2d 922 (Ky.App.1977); Minor v. Commonwealth, 478 S.W.2d 716 (Ky.1972), cert. denied, 409 U.S. 1064, 93 S.Ct. 563, 34 L.Ed.2d 517 (1972). ¹ Kentucky's decision not to review this matter was an adequate and independent procedural state ground for denying petitioner's claim which Wainwright requires this Court to honor in the absence of a showing of "cause" and "prejudice".

The District Court in the instant case found that application of the rule of Wainwright did not preclude review of petitioner's claim because the comments and questions of the prosecutor amounted to "plain error". A review of the language and rationale of Wainwright indicates that the District Court erred in making an independent assessment of "plain error" rather than deferring to the state court's application of its contemporaneous objection requirement.

In reaching its conclusion the District Court relied, in part, on Minor v. Black, supra. This Court's refusal in Minor to defer to the Kentucky court's ruling on its contemporaneous objection requirement, however, was based on an application of the "deliberate bypass" rule which has since become improper under Wainwright.

The District Court also relied on the "plain error" language contained in several of the post-Wainwright cases from this Court. In those cases, however, this Court either determined that review was not precluded under the state's contemporaneous objection requirement, Berrier v. Egeler, 583 F.2d 515 (6th Cir. 1978), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978); Cook v. Bordenkircher, 602 F.2d 117 (6th Cir. 1979), or found that the "cause" and "prejudice" exception to the Wainwright rule had been met, Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. 1978). This Court has never ruled that federal habeas corpus review is proper under Wainwright based solely on an independent federal analysis of "plain error". The first post-Wainwright case in this Circuit to refer to a "plain error" analysis was Berrier v. Egeler, supra. In that case the Court made a proper Wainwright analysis of the state's contemporaneous objection requirement. Berrier v. Egeler, supra, 583 F.2d at 522. The Court subsequently noted, however, that the magnitude of the error would make it cognizable in a habeas proceeding as "plain error" even where no objection had been made at trial. The Court then cited a federal criminal case which applied the federal procedural rule allowing review of "plain error", even in the absence of a contemporaneous objection. This language should not be taken to mean that the application of the federal procedural rule on "plain error" can be substituted for an analysis of the state procedural rule under Wainwright. Such a holding would be contrary to the rule and rationale of Wainwright which allows the state rule to be an adequate and independent state ground for the decision and thus requires a focus on and application of the state's procedural rule. Consequently, the District Court erred in applying an independent determination of "plain error", rather than deferring to the...