Lincoln v. Sunn, No. 85-1712

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore SKOPIL, FLETCHER, and ALARCON; FLETCHER
Citation807 F.2d 805
Docket NumberNo. 85-1712
Decision Date06 January 1987
PartiesJohn K. LINCOLN, Petitioner-Appellant, v. Franklin Y.K. SUNN, Respondent-Appellee.

Page 805

807 F.2d 805
John K. LINCOLN, Petitioner-Appellant,
v.
Franklin Y.K. SUNN, Respondent-Appellee.
No. 85-1712.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Nov. 22, 1985.
Decided Jan. 6, 1987.

Page 807

Eric A. Seitz, Honolulu, Hawaii, for petitioner-appellant.

Willard J. Peterson, Arthur F. Ross, Honolulu, Hawaii, for respondent-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before SKOPIL, FLETCHER, and ALARCON, Circuit Judges.

FLETCHER, Circuit Judge:

John Lincoln appeals from the district court's denial of his petition for habeas corpus without an evidentiary hearing. He requests relief from a sentence of life imprisonment with possibility of parole and an additional term of twenty years. He contends that he was denied a fair trial as a result of impermissible prosecutorial comment during closing argument, juror bias, lack of fair notice, and restrictions on the use of evidence during trial. We affirm in part, and reverse and remand in part for further proceedings.

FACTUAL BACKGROUND

In 1978, Anthony Kekona and Patrick Hawkins went to a condominium on Maui

Page 808

where Paul Warford, David Blue, and Harriet Savage were staying. Kekona shot and killed Warford and Blue, and seriously wounded Savage.

Kekona and Hawkins were arrested shortly after the shootings. Kekona pleaded guilty to two counts of murder and one count of attempted murder. During sentencing, Kekona stated that he and Hawkins acted alone in perpetrating the crimes, and that their original plan had been to rob, not kill, the victims.

After sentencing, Kekona changed his story and claimed that John Lincoln had hired him to kill the three victims. According to the prosecution, Lincoln reneged on the contract terms. He refused to pay Kekona $10,000 as agreed, failed to provide Kekona with a lawyer after Kekona was apprehended, and failed to kill adverse witnesses.

In late 1979, a grand jury indicted Lincoln on two counts of "murder for hire" and a third count of attempted murder. The trial court denied Lincoln's motions for change of venue based on pretrial publicity. Most of the jurors had been exposed to media accounts of the case. Trial began in March, 1980.

Lincoln did not testify at his trial. During the government's closing rebuttal statement, the prosecutor commented that "only one person," besides Kekona, could testify regarding certain events that allegedly involved Kekona and Lincoln.

The jurors were instructed that they could return the following verdicts: guilty of "murder for hire"; guilty of the "lesser included offense" of murder; guilty of the attempted murder of Savage; or not guilty. The jury ultimately acquitted Lincoln on charges that he had hired Kekona to kill Warford and Blue, but convicted him of the "lesser included offense" of their murders. In addition, the jury convicted Lincoln of the attempted murder of Savage. Lincoln timely appeals.

DISCUSSION

We review the district court's decision to deny a writ of habeas corpus de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir.1985); Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985). Our review of a state petitioner's claims is only for the narrow purpose of determining whether due process has been violated. Donnelly v. De Christoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974).

Our review of a petition denied without a hearing involves a two-part inquiry. First, we determine whether the petitioner has alleged facts which, if proven, would entitle him to relief. If so, we then ascertain whether an evidentiary hearing is necessary to establish the truth of the allegations. Pierce v. Cardwell, 572 F.2d 1339, 1340-41 (9th Cir.1978); see Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

In this case, the district court's order, in its entirety, stated only that "having carefully reviewed the memoranda filed by the parties and the trial transcripts, [the court] finds that the plaintiff has failed to state a cause of action." The district court's order failed to provide us with meaningful findings and conclusions on the issues, and therefore, the basis for its decision is unknown to us. We may not affirm a district court's denial of a writ of habeas corpus unless the court either held a hearing, or the record shows that the district court independently reviewed the relevant portions of the state court record. Richmond v. Ricketts, 774 F.2d 957, 961 (9th Cir.1985); Johnson v. Lumpkin, 769 F.2d 630, 636 (9th Cir.1985).

Because there are no findings or conclusions, we cannot rest assured that an independent review was conducted in this case. Rhinehart v. Gunn, 598 F.2d 557, 558 (9th Cir.1979) (per curiam). It will therefore be necessary to remand to the district court those of Lincoln's assertions that state a claim for relief. See Patterson v. Warden, San Luis Obispo, 624 F.2d 69, 70 (9th Cir.1980) (per curiam) (remanding

Page 809

habeas case to district court if its findings and conclusions are incomplete and lacking in specificity and petitioner has stated a claim for relief); see also Whitley v. Miller, 749 F.2d 634, 635 (11th Cir.1984) (per curiam) (same); Jones v. Beto, 448 F.2d 1259, 1260 (5th Cir.1971) (per curiam); (remand for findings, if court cannot determine whether dismissal was proper); Naillieux v. Crouse, 356 F.2d 499, 500 (10th Cir.1966). We examine each of Lincoln's contentions in turn.

A. Prosecutorial Misconduct in Closing Argument

The Fifth Amendment prohibits the prosecutor from commenting on a defendant's decision not to testify. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). While it is proper for the prosecution to address the defense's arguments, comment is impermissible if it is manifestly intended to call attention to the defendant's failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify. United States v. Bagley, 772 F.2d 482, 494 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1215, 89 L.Ed.2d 326 (1986); United States v. Soulard, 730 F.2d 1292, 1306 (9th Cir.1984).

Prosecutorial comment on the defendant's failure to testify mandates reversal "where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis for the conviction, and where there is evidence that could have supported acquittal." United States v. Kennedy, 714 F.2d 968, 976 (9th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 704 (1984) (quoting Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968) (per curiam)). Improper comment warrants reversal only if it appears that the comment may possibly have affected the verdict. United States v. Pruitt, 719 F.2d 975, 978 (9th Cir.) (per curiam), cert. denied, 464 U.S. 1012, 104 S.Ct. 536, 78 L.Ed.2d 716 (1983).

Conversely, courts will not reverse when the prosecutorial comment is a single, isolated incident, does not stress an inference of guilt from silence as a basis of conviction, and is followed by curative instructions. Soulard, 730 F.2d at 1307; Kennedy, 714 F.2d at 976.

In Lincoln's case, the prosecutor made four arguably improper comments during his thirty-minute rebuttal argument. 1 Defense counsel objected twice. The court included a standard jury instruction cautioning jurors not to draw inferences from the defendant's failure to testify.

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The government offers two related justifications for its comments in rebuttal argument: (1) that the statements were offered, not for the purpose of highlighting the defendant's failure to testify, but in response to the defense's arguments that the prosecutor had failed to corroborate Kekona's testimony or prove Lincoln's motive, see Bagley, 772 F.2d at 494; (2) that it is permissible for the prosecution to comment on a defendant's silence if the prosecution does so in direct reply to defense statements that capitalize upon the defendant's silence, see, e.g., Bradford v. Stone, 594 F.2d 1294, 1296 (9th Cir.1979).

The repeated reference of the prosecution to the "only ... person" who could explain the evidence might be interpreted as a direct comment on the defendant's failure to testify, rather than as a legitimate rebuttal to the defense's arguments concerning lack of evidence of motive.

Courts have distinguished between those cases in which the defendant is the sole witness who could possibly offer evidence on a particular issue, and those cases in which the information is available from other defense witnesses as well. In United States v. Cianciulli, 482 F.Supp. 585, 591-92 (E.D.Pa.1979), the court held that when the defendant and a government witness were the only two persons at the scene of a crime, and therefore the defendant is the only witness who could rebut or negate the government witness's testimony, prosecutorial comment "suggesting that the jury should have heard more testimony can only cause the jury to naturally look to the only other evidence there is--the defendant--and, hence, this could be a prohibited comment on the defendant's failure to testify." (emphasis in original). But cf. Kennedy, 714 F.2d at 977 (no plain error when prosecutor commented that defense did not call a witness to explain how defendant got paint on his clothing).

In Lincoln's case, the prosecutor's allusion to facts that were within the knowledge of only two people--Kekona, who testified, and Lincoln, who did not--might therefore be presumed to be a reference to Lincoln's failure to take the stand.

The government's, and the state appellate court's reliance on Bradford v. Stone, 594 F.2d 1294 (9th Cir.1979) to justify the prosecution's comments is misplaced. Bradford holds that otherwise impermissible prosecutorial comment on a defendant's silence is acceptable if the defense...

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386 practice notes
  • Bell v. Lynbaugh, No. B-87-401-CA.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • June 3, 1987
    ...based solely upon the evidence presented. United States v. Klacker, 811 F.2d 555, 556 (11th Cir.1987) (per curiam); Lincoln v. Sunn, 807 F.2d 805, 815 (9th This Court's review of the transcript reveals that Ms. Head's testimony was, that although she had read about the case in 1974, she was......
  • Rienhardt v. Shinn, CV-03-0290-TUC-DCB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • November 8, 2021
    ...is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify.” Lincoln v. Sunn, 807 F.2d 805, 809 & n.1 (9th Cir. 1987) (finding comments improper where prosecutor argued, “there's only one person who can tell us” . . . “there is onl......
  • Demirdjian v. Gipson, No. 09–56453
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 10, 2016
    ...“of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify,” Lincoln v. Sunn , 807 F.2d 805, 809 (9th Cir. 1987). The nearly two dozen Griffin errors alleged here fall into three main groups. The first group, by far the largest, cons......
  • Delgado v. Rice, No. SA CV 96-372 AHS (MAN).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 20, 1999
    ...record in reaching this conclusion would make review of the Petition without an evidentiary hearing Page 1157 proper. See Lincoln v. Sunn, 807 F.2d 805, 808 (9th C. Judge-Deliberating-Jury Ex Parte Contact The Supreme Court has adjudicated on several occasions the errors committed by trial ......
  • Request a trial to view additional results
384 cases
  • Bell v. Lynbaugh, No. B-87-401-CA.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • June 3, 1987
    ...based solely upon the evidence presented. United States v. Klacker, 811 F.2d 555, 556 (11th Cir.1987) (per curiam); Lincoln v. Sunn, 807 F.2d 805, 815 (9th This Court's review of the transcript reveals that Ms. Head's testimony was, that although she had read about the case in 1974, she was......
  • Rienhardt v. Shinn, CV-03-0290-TUC-DCB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • November 8, 2021
    ...is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify.” Lincoln v. Sunn, 807 F.2d 805, 809 & n.1 (9th Cir. 1987) (finding comments improper where prosecutor argued, “there's only one person who can tell us” . . . “there is onl......
  • Demirdjian v. Gipson, No. 09–56453
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 10, 2016
    ...“of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify,” Lincoln v. Sunn , 807 F.2d 805, 809 (9th Cir. 1987). The nearly two dozen Griffin errors alleged here fall into three main groups. The first group, by far the largest, cons......
  • Delgado v. Rice, No. SA CV 96-372 AHS (MAN).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 20, 1999
    ...record in reaching this conclusion would make review of the Petition without an evidentiary hearing Page 1157 proper. See Lincoln v. Sunn, 807 F.2d 805, 808 (9th C. Judge-Deliberating-Jury Ex Parte Contact The Supreme Court has adjudicated on several occasions the errors committed by trial ......
  • Request a trial to view additional results

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