Naughten v. Cupp

• Decision Date: 23 April 1973
• Docket Number: No. 71-3065.,71-3065.
• Parties: Hugh NAUGHTEN, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

476 F.2d 845 (1973)

Hugh NAUGHTEN, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent-Appellee.

No. 71-3065.

United States Court of Appeals, Ninth Circuit.

May 24, 1972.

As Amended on Denial of Rehearing January 18, 1973.

Dissenting Opinion February 26, 1973.

Certiorari Granted April 23, 1973.

Ross R. Runkel (argued), Salem, Or., for petitioner-appellant.

John W. Osburn, Sol. Gen. (argued), Jim G. Russell, Asst. Atty. Gen., Lee Johnson, Atty. Gen., Salem, Or., for respondent-appellee.

Before JERTBERG, ELY, and HUFSTEDLER, Circuit Judges.

Certiorari Granted April 23, 1973. See 93 S.Ct. 1926.

ELY, Circuit Judge:

Naughten is an Oregon state prisoner, convicted of the offense of armed robbery. His direct appeal in the Oregon state courts was unsuccessful. State v. Naughten, 90 Adv.Or. 1811, 471 P.2d 830 (App. 1970). Eventually, Naughten filed a petition for habeas corpus in the court below, and he now appeals from the denial of that petition.

In the state court trial, the judge, over Naughten's objection,¹ instructed the jury as follows:

"Every witness is presumed to speak the truth. This presumption may be overcome by the manner in which the witness testifies, by the nature of his or her testimony, by evidence affecting his or her character, interest, or motives, by contradictory evidence, or by a presumption."

Such an instruction has been almost universally condemned. See United States v. Birmingham, 447 F.2d 1313 (10th Cir. 1971); United States v. Stroble, 431 F.2d 1273 (6th Cir. 1970); McMillen v. United States, 386 F.2d 29 (1st Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288; United States v. Dichiarinte, 385 F.2d 333 (7th Cir. 1967); United States v. Johnson, 371 F.2d 800 (3d Cir. 1967); United States v. Persico, 349 F.2d 6 (2d Cir. 1965). See also United States v. Safley, 408 F.2d 603 (4th Cir. 1969); Harrison v. United States, 387 F.2d 614 (5th Cir. 1968); Stone v. United States, 126 U.S. App.D.C. 369, 379 F.2d 146 (1967). In Stone v. United States, supra, Judge, now Chief Justice, Burger, wrote:

"This instruction has a tendency to impinge on the presumption of innocence. Lurking in such an instruction is the risk that the jury might conclude that they were required to accept the testimony of the prosecution\'s witnesses at face value, particularly when it is not contradicted by other witnesses."

379 F.2d at 147.

In the state court trial, Naughten did not testify, nor did he present any witnesses in his defense. Thus, the clear effect of the challenged instruction was to place the burden on Naughten to prove his innocence. This is so repugnant to the American concept that it is offensive to any fair notion of due process of law. See Bentley v. Crist, 469 F.2d 854, 855 n. 2 (9th Cir. 1972).

The appellee contends that other of the court's instructions offset the vice of the instruction that we have quoted. We do not agree, for there was no instruction so specifically directed to that under attack as can be said to have effected a cure.

The appellee also contends that the instruction, even if fatally defective under the federal constitution, was, in the circumstances, harmless beyond all reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We reject this argument also. Once Naughten established the infringement of a constitutionally protected right, the burden shifted to the appellee to establish that the error was harmless under the Chapman standard. From our examination of the transcript of the trial proceedings, we conclude that the appellee could not, in this case, meet the burden. Cf. Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968).

Naughten is entitled to a new trial; therefore, upon remand, the District Court will hold the petition in abeyance for a reasonable period, not to exceed sixty days, so as to afford Oregon the opportunity to reprosecute Naughten should it choose to do so.

Reversed and remanded.

ORDER ON PETITION FOR REHEARING

The court amends its original opinion in the subject case as follows:

(1) The insertion of a footnote reference1 after the word "objection," the last word of the first line of the second paragraph of the slip opinion of May 24, 1972.^*

(2) The addition of a footnote1 reading as follows: "The fact that Naughten made a timely objection to the instruction deserves emphasis. Absent such an objection, he would be in no position to challenge it. This is because, in the circumstances of a particular case and because of other contents of the instruction, an accused's attorney might appropriately deem it strategically advantageous to the accused that the instruction be given."

The court's original opinion having been thus amended, the panel as originally constituted has voted to deny the petition for rehearing and to reject the suggestion for en banc rehearing.

The full court has been advised of the suggestion for en banc rehearing and has been advised of the foregoing amendments to the court's original opinion.

A judge in active service having requested that a vote be taken on the appellee's suggestion for en banc rehearing, such a vote has been taken. Fed. R.App.P. 35(b). Judges Chambers, Koelsch, Wright, Trask, Goodwin, and Wallace would have granted en banc rehearing, and Judge Chambers wishes it recorded that he presently intends to write and file, at a later date, a separate opinion explaining his views.

The other six judges in active service voted to reject the suggestion for en banc rehearing. The vote being equally divided, the suggestion for en banc rehearing is rejected.

CHAMBERS, Circuit Judge (dissenting):

Naughten was charged with robbing a Quickie Mart drive-in grocery store in Portland, Oregon, on August 17, 1968. The evidence at trial consisted of the testimony of James R. Livengood, the proprietor of the store, the testimony of Larree E. Weissenfluh, a friend of Livengood who was in the store with Livengood, and the testimony of the officers who arrested Naughten and investigated the crime.

Livengood testified as follows:

The store closed at midnight. Around midnight on August 17, 1968, Livengood was in the store preparing the till change for the next morning. Livengood's friend Weissenfluh was in the store partly because Livengood did not like to be in the store alone late at night. The store was well-lighted, even after closing, since several of the banks of lights were left lighted all night. There were large glass doors at the front of the store.

At approximately 12:10 a man entered the store, brandished a pistol and said, "This is a holdup." The robber took three stacks of currency from the counter top where Livengood was working. There had been 21 $1. bills, 9 or 11 $5. bills, and 3 $10. bills. The robber told Livengood to open the safe. Livengood opened the safe, and the robber removed a small, brown paper grocery bag filled with quarters from the safe.

The bandit ordered Livengood and Weissenfluh to the rear of the store to a walk-in cooler. After they had been in the rear of the store a short time, Weissenfluh said, "He's gone." Livengood went to the front of the store, but the robber was still there. The robber ordered Livengood to get back to the rear of the store and stay there or the robber would use the pistol. The robber put the pistol to Livengood's head and directed him to the rear of the store, threatening to pistol-whip him if he did not obey.

After a moment, Weissenfluh said, "He's gone, I'm sure he's gone this time." Livengood went up front again, got his pistol from under the counter, and looked for the robber. The robber was gone. Livengood went out front and saw the robber in the parking lot of a tavern across the street for only a brief moment.

Livengood called the police and reported the robbery, then stayed on the telephone watching the parking lot across the street. He saw a car leave, then another that appeared to be driven by the robber. A police car pulled up at that moment and stopped the car pulling out of the parking lot. Livengood went over to the car and identified the driver as the robber. He was not wearing the overcoat he had worn in the store, and Livengood did not see the pistol.

Livengood described the robber's pistol as being about six inches long, .22 calibre, and old and worn. Livengood said that the robber wore dark trousers, a light-colored shirt, and an overcoat. The robber was about two to three feet away from Livengood. The robber was in the store a total of fifteen minutes, and of that time Livengood observed him all but two or three minutes.

Livengood identified Naughten at trial as the robber. The prosecutor asked, "Is there any doubt in your mind?"

Livengood responded, "None whatsoever."

On cross-examination, Livengood denied that he had viewed any lineups or any photospreads containing pictures of Naughten. Livengood denied talking about the case with anyone except for answering some questions for the deputy district attorney the day before the trial. Livengood admitted being with Weissenfluh the evening before his testimony, but denied discussing the case except to wonder how long it would last. Livengood said that he had never before testified in a case.

Weissenfluh testified as follows:

He was a shipping clerk, not employed at the Quickie Mart. On the night of the robbery he had been visiting with Livengood at the store since about 10:00 p. m. They planned to have a few beers after closing. At about 12:10, Weissenfluh was standing in front of...