Murphy v. Sowders

• Decision Date: 03 November 1986
• Docket Number: 85-5338,Nos. 85-5337,s. 85-5337
• Citation: 801 F.2d 205
• Parties: Gregory Arnold MURPHY, Petitioner-Appellee, Cross-Appellant, v. Dewey SOWDERS, Superintendent, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 205

801 F.2d 205

Gregory Arnold MURPHY, Petitioner-Appellee, Cross-Appellant, v. Dewey SOWDERS, Superintendent, Respondent-Appellant, Cross-Appellee.

Nos. 85-5337, 85-5338.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 5, 1985.

Decided Sept. 12, 1986.

Rehearing and Rehearing En Banc Denied Nov. 3, 1986

David L. Armstrong, Atty. Gen. of Ky., Frankfort, Ky., Joseph R. Johnson argued, for respondent-appellant cross-appellee.

Frank W. Heft, Jr. argued, Jefferson Dist. Public Defender, Louisville, Ky., for petitioner-appellee cross-appellant.

Before KRUPANSKY and MILBURN, Circuit Judges; and BROWN, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

The Commonwealth of Kentucky has appealed the order of the United States District Court for the Western District of Kentucky, 607 F.Supp. 385 (1985), granting a writ of habeas corpus to the petitioner-appellee Gregory Arnold Murphy (Murphy), who had been tried and convicted in a Kentucky state court for the murder of a woman in October of 1979. In granting the writ, the district court concluded that Murphy's constitutional right to be free from ex post facto legislative enactments had been infringed by the Commonwealth.

A primary issue of consequence confronting this court on appeal concerns the scope of the ex post facto prohibition in Article I of the Constitution since the Commonwealth had conceded that the repeal of Kentucky Rule of Criminal Procedure 9.62 (RCr 9.62) was a legislative act that was retroactively effective at the time of Murphy's trial.

A review of existing legal precedent has disclosed that the Supreme Court addressed the issue here presented in its factually indistinguishable seminal decision of Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884).

At the time that the homicide was committed and the indictment was returned in Hopt, the 1878 Criminal Procedure Act of Utah provided that convicted felons, unless pardoned by the governor, were foreclosed At Hopt's trial, the trial court permitted a felon named Emerson who was confined in the penitentiary as a result of a murder conviction to appear as a prosecution witness and, over the objection of the defendant, admitted Emerson's testimony which implicated the defendant Hopt in the crime of homicide charged against him. The retroactive application of the controversial legislative act in issue was not contested by the state upon appeal.

from testifying in any judicial action or proceeding because, as a matter of law, they lacked credibility. After the date of the alleged homicide but prior to the trial of the case, the state legislature promulgated an act which repealed the section of the Utah law that imposed the absolute bar against felons to give testimony in judicial proceedings.

In clear and concise language which has successfully withstood both the scrutiny and erosion of time, the Supreme Court stated:

Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done, nor aggravate any crime theretofore committed, nor provide a greater punishment therefor than was prescribed at the time of its commission, nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed.

Id. at 589, 4 S.Ct. at 210.

In concluding its opinion, the Court emphasized its enunciated rule of law with the following reasoning:

[A]lterations which do not increase the punishment, nor change the ingredients of the offense or the ultimate procedural facts necessary to establish guilt, but--leaving untouched the nature of the crime and the amount or degree of proof essential to conviction--only removes existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, ... which the state, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offense charged.

Id. at 590, 4 S.Ct. at 210.

The operative procedural facts of the case at bar track the facts of Hopt with precision. The record disclosed that Murphy was indicted in a Kentucky state court on November 26, 1979 for the crime of homicide allegedly committed on October 18, 1979. At the time that the homicide was committed and at the time that the indictment was returned, RCr 9.62 was the prevailing law of that state. It provided:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. In the absence of corroboration as required by law, the court shall instruct the jury to render a verdict of acquittal.

As in Hopt, subsequent to the date of the alleged homicide and indictment but prior to the trial of Murphy's case, the Kentucky legislature promulgated an act which repealed RCr 9.62. At Murphy's trial, his co-defendant Norman Crittenden (Crittenden), whom the defense characterized as an accomplice, testified that petitioner alone committed the murder and that, he, Crittenden, was merely an observer. Although Crittenden's testimony afforded the only direct evidence that Murphy committed the homicide in issue, the record reflected substantial circumstantial evidence, albeit conflicting, that corroborated Crittenden's testimony which implicated Murphy if credited Historically, Kentucky followed the common law and permitted accomplice testimony without corroboration to support a conviction until the evolution and final enactment of RCr 9.62, at which time that enactment deemed otherwise competent testimony of an accomplice to be incredible as a matter of law unless corroborated in some degree. As in Hopt, the only change effected by the repeal of RCr 9.62 was that the credibility impediment which was legislatively imposed upon the testimony of a certain class of witnesses had been removed. As in Hopt, the impediment against the testimony of a felon and/or an uncorroborated accomplice was not the competency of such individual to testify, but rather the credibility to be assigned his testimony as a condition of his competency. In both instances, the repealed statute decreed the testimony of a felon and/or uncorroborated accomplice incredible as a matter of law. Thus, a legislative enactment which repealed a statutorily imposed impediment, which declared the testimony of felons or uncorroborated accomplices to be inadmissible in judicial proceedings because such testimony was, as a matter of law, incredible, simply enlarged the class of persons to be considered competent to testify and was procedural in effect. ² Applying the teachings of the Supreme Court in Hopt, it would appear that the repeal of RCr 9.62 did not (1) attach criminality to any act previously committed; (2) aggravate any crime theretofore committed; (3) provide greater punishment than was prescribed at the time of the commission of the crime; or (4) alter the degree or lessen the amount or measure of the proof necessary to sustain a conviction when the crime was committed. Stated differently, the crime for which Murphy was indicted, the punishment prescribed therefor, and the quantity or degree of proof necessary to establish guilt all remained unaffected by the repeal of RCr 9.62. A corroboration requirement clearly did not occupy the status of an element of the crime nor did its elimination alter the reasonable doubt standard which traditionally protected criminal defendants. The same essential facts were required to be established by the evidence at Murphy's trial as were required to be proven prior to the repeal of RCr 9.62 to convict him of the crime of murder. Accordingly, the dictates of the Supreme Court in Hopt suggest a conclusion that the legislative enactment that repealed RCr 9.62 did not constitute an ex post facto act as applied to Murphy.

                by the jury. 1   At the conclusion of the trial, Murphy requested the trial court to instruct the jury that he could not be convicted of the offense charged solely upon the uncorroborated testimony of Crittenden.  The trial court denied the requested charge and the petitioner was convicted
                

Murphy has urged this court to distinguish the Supreme Court's decision in Hopt from this case by asserting that the pronouncements of Hopt vindicate his conclusion that the retrospective application of repealed Kentucky statute RCr 9.62 substantially disadvantaged his position in violation of his constitutional right to be free from ex post facto applications of law. The thrust of this argument is plumbed in the following passage from Hopt:

Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be obnoxious to the constitutional inhibition upon ex post facto laws.

110 U.S. at 590, 4 S.Ct. at 210. Murphy has reasoned that repealed RCr 9.62 permitted an accomplice to testify without corroborating evidence, ergo, a lesser "amount" or "degree" of proof was essential to support his conviction.

At first blush, the language in Hopt on its face and Murphy's reasoning appear compelling. Upon a further reading of the Court's opinion in Hopt, however, Murphy's reliance on the above-quoted statement is misplaced. The Court, immediately after the sentence Murphy so heavily relies upon, juxtaposed that, "But alterations which do not increase the punishment, nor change the...