Marsh v. Cupp

• Decision Date: 15 June 1976
• Docket Number: No. 75-2326,75-2326
• Citation: 536 F.2d 1287
• Parties: Roger Allen MARSH, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1287

536 F.2d 1287

Roger Allen MARSH, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary,

Respondent-Appellee.

No. 75-2326.

United States Court of Appeals,

Ninth Circuit.

June 15, 1976.

Charles Robinowitz (argued), of Portland, Or., for petitioner-appellant.

Rhidian M. Morgan, Asst. Atty. Gen. (argued), Salem, Or., for respondent-appellee.

OPINION

Before BARNES, DUNIWAY and SNEED, Circuit Judges.

BARNES, Senior Circuit Judge:

This is an appeal from the denial of a petition for a writ of habeas corpus by a federal district judge where the petitioner was a state prisoner.

Issues listed in P 10(a), (b), (c), and (d), of the appellant's Petition for Writ of Habeas Corpus (after his state court conviction for rape), each allege a denial of "due process."

Paragraph 11(a) sets forth, in factual support of 10(a), that the "Allen Charge" was given the jury twice, allegedly in error the second time.

Paragraph 11(b) sets forth, in support of 10(b), that when the jury was twice instructed after becoming deadlocked, it was not re-instructed as to the burden of proof being on the state.

Paragraph 11(c) sets forth in support of 10(c) an argument that the evidence to convict was insufficient.

Paragraph 11(c) sets forth in support of 10(d) that it was error to instruct the jury that "Every witness is presumed to speak the truth."

After Marsh' conviction, in 1970, his counsel took an appeal. His conviction was affirmed from the bench by the Oregon State Court of Appeals on June 21, 1971 (485 P.2d 1253), and by the Supreme Court of Oregon in a careful 12-page opinion on November 5, 1971 (490 P.2d 491).

Paragraph 11(a) refers to the "Allen Charge," which we will consider later.

Paragraph 11(b) (failure to reinstruct burden of proof on state): This was not raised on appeal in the State Court, but could have been. The United States Magistrate (to which the petition for habeas corpus was referred) found it to be without merit:

"It was not necessary for the trial judge to reinstruct the jury on the burden of proof. Jury instructions must be considered as a whole, United States v. Tocki, 469 F.2d 655 (9th Cir. 1972), and an examination of the entire set of instructions given to the jury shows that the trial judge adequately informed the jury of the state's burden of proof." (C.T. p. 15, lines 10-16).

See also United States v. Marshall, 532 F.2d 1279 (9th Cir. 1976).

Paragraph 11(c):

The insufficiency of the evidence, according to petitioner and appellant, was raised by his counsel before the Oregon Supreme Court. That court states that at oral argument, the Public Defender, representing petitioner and appellant, "conceded . . . that the state's evidence was sufficient to support the verdict." Nevertheless, the Oregon Supreme Court examined on its own the entire record and found "there was ample testimony, if believed by the jury, to corroborate the testimony of the complaining witness." (State v. Marsh, p. 492, and particularly Note 1). ¹

When this 11(c) issue was passed upon by the United States Magistrate, he found it to be without merit. "An examination of the record shows that there was sufficient credible evidence for the jury to find the petitioner guilty of the offense (C.T. p. 14). Habeas Corpus relief will be granted only if the record is totally devoid of such evidence. Freeman v. Stone, 444 F.2d 113 (9th Cir. 1971)."

Paragraph 11(d) asserts that the trial judge "switched the burden of proof" when he instructed the jury: "Every witness is presumed to speak the truth." (C.T. p. 3) The United States Magistrate stated that this issue had no merit:

"While this instruction has been disapproved, Naughten v. Cupp, 476 F.2d 845, No. 71-3065, (9th Cir. 1972), ² here the petitioner called his own witnesses and testified in his own behalf. Under these circumstances, this instruction did not deny the petitioner due process of law. Capitan v. Cupp (No. 71-3065, unpublished opinion) (Ore.1972)."

The magistrate correctly emphasized the fact (as did the Supreme Court in reversing this court's opinion), ³ that it was one matter if no defense witnesses were called, while quite another if defense witnesses were called. And here they were.

We turn to the alleged error (P 11(a)) in the giving of the "Allen charge."

Before we get into it, however, we observe that we are concerned about repeated reference in appellant's opening brief to the facts surrounding the giving of the second "Allen" instruction, i. e., the "knowledge" ⁴ of the trial judge with respect to which side had the 9-3 majority. ⁵

We turn to the rule laid down by the Supreme Court in Jenkins v. United States. ⁶ There the simple test, as conceded by the Solicitor General, is "whether in its context and under all the circumstances of this case the statement was coercive." In Jenkins, it was deemed coercive.

The only portion of the charge quoted by the Supreme Court as being coercive was: "You have got to reach a decision in this case." The entire instruction is quoted in the opinion of the court of appeals. ⁷ In addition to the language quoted by the Supreme Court, the instruction contained the statement: "Now I am not going to accept this," immediately before the line relied upon by the Supreme Court. And as the dissent in the D.C. Circuit stated, this instruction was different from the "Allen charge," because "at least in the 'Allen charge,' after the jury is told that it is its duty to reach a verdict, the words 'if (you) can conscientiously do so' are added. Here the jury was simply told flat out: 'You have got to reach a decision in this case.' "

In the second "Allen charge" given, the jury was carefully advised that everyone on the jury must still follow "his own" conscience in determining whether or not it could agree, immediately after the phrase "it is incumbent upon you to reach a verdict." The Oregon Supreme Court found the instruction as given (a) was a "modified" form of the "Allen charge," and (b) was a "balanced" charge.

The Oregon Court then stated:

"Considering these instructions as a whole, we are of the opinion that they were not so extreme or otherwise improper as to deprive a defendant of his constitutional right to a fair trial or otherwise to violate any of his constitutional rights. The reference to a retrial if the jury did not reach a verdict was improper, however. Also improper was the statement that 'it is incumbent upon you to reach a verdict' but that statement was immediately 'followed' by the reminder that no juror was expected to vote other than 'according to (his) own conscience.' In essence, this charge was quite similar to the ABA approved charge that each juror has the 'duty' to 'deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment.' "

The Oregon court then considered the "Factual Setting" of the second or supplemental instruction, and held that because the jury, when asked whether it could arrive at a verdict within thirty minutes, did not answer the court's query, but requested further instructions on what constituted rape,

"This would indicate that upon receiving such instructions the jury expected that it would, in all probability, be able to arrive at a verdict within thirty minutes. Thus, it would also appear that under these circumstances the fact that the jury returned its verdict within a few minutes after receiving the final instructions by the trial court does not demonstrate that it was 'coerced' into returning a verdict of guilty by the further instruction urging it to reach a verdict if it could conscientiously do so." (emphasis added)

The Oregon Supreme Court then concluded:

"In this 'factual context' and under these circumstances, and considering also the 'modified' and 'balanced' nature of the supplemental instructions as given by the trial judge in this case, we hold that while it was improper to give such instructions, any error in doing so was not so serious or of such a nature as to violate any of defendant's constitutional rights."

There being no constitutional error, the Oregon Court then held that the conviction should be affirmed in the absence of any exceptions to either "Allen" instruction.

"This court has held repeatedly, in criminal as well as in civil cases, that judgments will not be reversed for errors in instructions where no proper exceptions were taken to such instructions unless, 'upon examination of the entire record, the court can say that the error is manifest and that the ends of justice will not otherwise be satisfied.' "

Appellant concedes that he took no exception to the first "Allen charge." He takes no issue with the statement that three hours later, he again consented ⁸ to have the jury answer the court's enquiry as to its current vote. The message explicitly precluded any mention in the jury's answer as to whom the jury favored. ⁹ The note came from the jury "Nine to three". The court then sent a note: "Is there any reasonable chance of arriving at a verdict in the next thirty minutes?" (This again was with consent of counsel.) (R.T. p. 234). Without answering the court's enquiry, the jury asked for a further specific instruction on what constituted rape.

The court showed this note to both counsel, and asked each to "state your position on the record."

Trial counsel for appellant moved for a mistrial. (R.T. p. 231). The government opposed the motion. The court stated that he proposed to reinstruct the jury "on the substantive instruction on rape." The government had no objection; defense counsel took an exception "to the additional instruction on rape."

The court then reinstructed the jury on rape, and added the second "Allen-like charge," as modified. The jury retired and the following occurred:

"The Court: Mr. Rask, in addition to the exceptions previously taken I would appreciate it if you would state for the record any additional exceptions or lack of instructions just...