Mahorney v. Wallman

• Decision Date: 24 October 1990
• Docket Number: No. 89-5032,89-5032
• Citation: 917 F.2d 469
• Parties: Melvin Chad MAHORNEY, Petitioner-Appellant, v. Ted WALLMAN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 469

917 F.2d 469

Melvin Chad MAHORNEY, Petitioner-Appellant, v. Ted WALLMAN, Respondent-Appellee.

No. 89-5032.

United States Court of Appeals Tenth Circuit.

Oct. 24, 1990.

Melvin C. Mahorney, pro se.

Robert H. Henry, Atty. Gen. of Oklahoma, Elizabeth J. Bradford, Asst. Atty. Gen., Oklahoma City, Okl., for respondent-appellee.

Before SEYMOUR, BRORBY and EBEL, Circuit Judges.

PER CURIAM.

Petitioner appeals from a district court order denying his 28 U.S.C. Sec. 2254 petition challenging a 1980 Oklahoma conviction of first degree rape after former conviction of two felonies (arson and feloniously pointing a weapon). See Okla.Stat. tit. 21, Sec. 1114 (1971) and tit. 21, Sec. 51 (Supp.1978). We consider here ¹ only that issue upon which this court previously granted petitioner a certificate of probable cause, i.e., whether the prosecution's comments on the presumption of innocence during the course of petitioner's trial mandate habeas relief. See 28 U.S.C. Sec. 2253.

The comments in question were made during voir dire of the jury:

[Mr. Thompson (prosecutor):] ... There's nothing magical about those terms [i.e., "presumption of innocence" and proof "beyond a reasonable doubt"]. The presumption of a person being innocent was designed to protect those persons who are, indeed, not guilty of a crime.

Mr. McCarthy [defense counsel]: To which I object, Your Honor.

The Court: I would overrule that.

Mr. McCarthy: And move that the jury be admonished and move for a mistrial.

The Court: Overruled.

Q. But was not intended to let those who are guilty escape justice.

Mr. McCarthy: Your Honor, may we approach the bench?

The Court: Yes.

(The following proceedings were had out of the hearing of the jury:)

Mr. McCarthy: Your Honor, I want to again renew my objection to Mr. Thompson's argument. I have got a case that I personally tried in front of Judge Graham that was appealed to the Court of Criminal Appeals and they held that argument to be improper and to be error when made by Mr. Lasorsa in a case and I would request that you admonish the jury to disregard it and move for a mistrial based on Mr. Thompson's comment.

The Court: And I would overrule that and give you an exception.

(State trial transcript at 58-59), and during the prosecution's closing argument in rebuttal:

[Mr. Thompson:] I submit to you, under the law and the evidence, that we are in a little different position today than we were when we first started this trial and it was your duty at that time, under the law of this land, as you were being selected as jurors, to actively in your minds presume that man over there not to be guilty of the offense of rape in the first degree, but, you know, things have changed since that time. I submit to you at this time, under the law and under the evidence, that that presumption has been removed, that that presumption no longer exists, that that presumption has been removed by evidence and he is standing before you now guilty. That presumption is not there any more.

Mr. McCarthy: I object to that, Judge.

The Court: Overruled.

Mr. McCarthy: Ask that the jury be admonished and move for a mistrial.

The Court: Overruled.

Mr. McCarthy: Exception.

(State trial transcript at 321).

The district court did not hold, and the state has not maintained, that these remarks were proper. ² Instead, the district court relied upon a fundamental fairness analysis to conclude that in light of the surrounding circumstances and especially the strength of the prosecution's case, the impropriety involved was not of constitutional magnitude and, therefore did not warrant the vacation of petitioner's conviction:

Improper prosecutorial argument will not warrant federal habeas relief unless the conduct complained of "made [petitioner's] trial so fundamentally unfair as to deny him due process." Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431, 438 (1974). A review of the trial transcripts shows that the evidence against petitioner was overwhelming. In light of the entire proceedings it is clear that the prosecutor's comments in no way rendered petitioner's trial unconstitutional.

Magistrate's recommendation of December 11, 1986, at 3-4, adopted by order of the district court entered December 30, 1988.

We must at the outset draw an important distinction with respect to the DeChristoforo fundamental fairness standard that relates directly to the specific concern raised by petitioner. While, ordinarily, claims of prosecutorial misconduct and other trial errors are reviewed on habeas in the manner reflected in the passage quoted above, when the impropriety complained of effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair. See DeChristoforo, 416 U.S. at 643, 94 S.Ct. at 1871 (distinguishing generalized due process claims based upon objectionable prosecutorial comment, to which fundamental fairness analysis applies, from particularized claims that prosecution's remarks infringed upon specific constitutional rights); see also Darden v. Wainwright, 477 U.S. 168, 181-82, 106 S.Ct. 2464, 2471-72, 91 L.Ed.2d 144 (1986) (habeas case following DeChristoforo and noting that prosecution's objectionable remarks did not "implicate other specific rights of the accused such as the right to counsel or the right to remain silent"); Coleman v. Saffle, 869 F.2d 1377, 1395 (10th Cir.1989) (habeas case reviewing prosecutor's objectionable comments only for fundamental unfairness under DeChristoforo "because the prosecutor's arguments did not infringe on any specific constitutional right"), cert. denied, --- U.S. ----, 110 S.Ct. 1835, 108 L.Ed.2d 964 (1990); Clark v. O'Leary, 852 F.2d 999, 1004-05 (7th Cir.1988) (habeas challenge to limits on defense cross-examination, grounded upon confrontation clause, distinguished from "general improprieties during a state trial [which] are not cognizable unless error resulted in a fundamentally unfair proceeding").

Of particular significance in this regard is this court's opinion in Brinlee v. Crisp, 608 F.2d 839 (10th Cir.1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980), which specifically identified the "constitutionally rooted presumption of innocence" as one of those basic rights whose violation may provide a ground for vacation of a state conviction independent of the more general due process concerns underlying fundamental fairness analysis. Id. at 854. See generally Cool v. United States, 409 U.S. 100, 104, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972) (referring to "constitutionally rooted presumption of innocence"); Zygadlo v. Wainwright, 720 F.2d 1221, 1223 (11th Cir.1983) ("[t]he constitution grants every defendant a presumption of innocence"), cert. denied, 466 U.S. 941, 104 S.Ct. 1921, 80 L.Ed.2d 468 (1984). In light of such precedent, our review of petitioner's prosecutorial misconduct claim, which rests squarely upon the presumption of innocence, is not constrained by the fundamental fairness principle recognized in DeChristoforo.

Our conclusion on this point is not inconsistent with the holding in Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979), that the failure to give a specific charge on the presumption of innocence "does not in and of itself violate the Constitution" in the absence of a finding that such failure, when considered with all other circumstances, rendered the trial fundamentally unfair. Id. at 789, 99 S.Ct. at 2090. Cf. Taylor v. Kentucky, 436 U.S. 478, 486-88, 490, 98 S.Ct. 1930, 1935-36, 1937, 56 L.Ed.2d 468 (1978) (predecessor to Whorton holding that failure to give presumption of innocence instruction gave rise to constitutional error in light of particular exacerbating circumstances presented). It does not follow that a prosecutorial misstatement affirmatively advising the jury that there is no presumption of innocence requires the same showing of fundamental unfairness that is required to challenge the mere absence of an instruction on the presumption.

A misstatement of law that affirmatively negates a constitutional right or principle is often, in our view, a more serious infringement than the mere omission of a requested instruction. Thus, for example, while a defendant may not be entitled to an instruction defining the fundamental standard of "reasonable doubt," see, e.g., United States v. Olmstead, 832 F.2d 642, 645-56 (1st Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1739, 100 L.Ed.2d 202 (1988) and numerous cases cited therein, this court has nevertheless recognized that should such an instruction be given substantially in error (viewing the charge as a whole), habeas relief is warranted absent a finding of harmless error. See also Monk v. Zelez, 901 F.2d 885, 888-91, 93 (10th Cir.1990). ³ "Because the government's burden of proving guilt beyond a reasonable doubt is one of the fundamental components of due process and the 'cornerstone of the criminal justice system,' an erroneous instruction on this burden requires habeas corpus relief unless it was harmless beyond a reasonable doubt." Id. at 888 (citations omitted). ⁴

In Donnelly, the Supreme Court excepted from the fundamental fairness analysis those cases "in which the prosecutor's remarks so prejudiced a specific right ... as to amount to a denial of that right." 416 U.S. at 643, 94 S.Ct. at 1871 (emphasis added). Thus, the issue is not the undeniably fundamental nature of the presumption of innocence, but rather whether, under the circumstances of petitioner's trial, the presumption was so undermined that the constitutional protection ordinarily afforded thereunder was effectively denied. Since the essence of the error in the prosecution's comments here was that they conveyed to the jury the idea that the presumption had been eliminated from the case prior to deliberations, we...