Payne v. Smith

• Decision Date: 24 December 1981
• Docket Number: No. 81-5029,81-5029
• Parties: Jesse Irvin PAYNE, Petitioner-Appellant, v. Steven SMITH, Steven Beshear, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 541

667 F.2d 541

Jesse Irvin PAYNE, Petitioner-Appellant, v. Steven SMITH, Steven Beshear, Respondents-Appellees.

No. 81-5029.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 8, 1981.

Decided Dec. 24, 1981.

Jesse Irvin Payne, pro se.

Robert J. W. Howell, Covington, Ky. (Court-appointed), for petitioner-appellant.

Steven Beshear, Atty. Gen. of Kentucky, Robert Bullock, Asst. Atty. Gen., Frankfort, Ky., for respondents-appellees.

Before MERRITT and BROWN, Circuit Judges, and WHITE, District Judge. ^*

BAILEY BROWN, Circuit Judge.

Appellant Jesse Irvin Payne is seeking habeas corpus relief from a Kentucky conviction of four counts of robbery in the first degree. For the reasons stated below, we affirm the district court's denial of appellant's claims for relief.

I.

Between 2:15 and 2:30 a.m. on December 31, 1977, two black males entered the Holiday Inn Southeast on Bardstown Road near Watterson Expressway in Louisville, Kentucky. One was armed with a sawed-off shotgun and the other with a .38 caliber derringer pistol. The two men forced three motel employees to lie on each other on the floor and took their wallets. One of these employees, the manager, was then ordered to go to another room and to turn over the money belonging to the motel. After taking the three robbery victims, as well as a guest and a maid who had happened upon the events, to an inner room, the men attempted to block the door and fled by car. As they were driving away, their car, a white over red Cadillac, as well as its license, were observed by one employee who notified the police.

A police cruiser, receiving a description of the robbers' car at about 2:35 a.m., stopped a car about six miles from the motel that met the description of the getaway car. This occurred in less than one hour after the robbery. In the car were the appellant, Jesse Irvin Payne, who was driving, and Johnnie Ray Douglas. Also found in the car, which belonged to Payne, were a loaded sawed-off shotgun on the floorboard on the passenger's side, a loaded derringer pistol under the armrest, an amount of money approximating that taken in the robbery, and a briefcase with contents later determined to belong to one of the robbery victims. The suspects were then taken back to the Holiday Inn where they were positively identified by two of the robbery victims.

Payne and Douglas were subsequently convicted. Their convictions were affirmed by the Supreme Court of Kentucky. Douglas v. Commonwealth, 586 S.W.2d 16 (Ky.1979). All of the arguments discussed below were addressed and rejected by the state supreme court.

Having exhausted their state remedies, the defendants then filed separate petitions for writs of habeas corpus with the United States District Court for the Western District of Kentucky. The district court, in an unpublished decision, denied relief to both petitioners, but we have only Payne's appeal. Payne made all of the contentions in the district court that he makes on this appeal.

The following four questions have been raised on appeal: (1) whether Payne was denied due process of law by being referred to by the trial judge as being in custody at the outset of the trial and by being seen in custody once during the course of the trial, (2) whether Payne was denied due process of law by the trial court's refusal to accept his tendered presumption of innocence instruction, (3) whether the trial court's instruction on reasonable doubt denied Payne his right to due process of law, and (4) whether Payne was put in double jeopardy by the court's determination that the taking of personal property from a motel employee and the taking of cash from the motel cash drawer constituted two separate robberies. These issues will be addressed seriatim.

II.

At the outset of the trial, and while the jury panel was coming into the courtroom, the trial judge remarked to the sheriff that the defendants Payne and Douglas should consider themselves in custody. The defendants, although expressly conceding that they were unsure whether the jury heard the remark, moved to "disempanel" the jury. The motion was overruled. A similar motion was made and overruled on the second day of the trial when the defendants were returned "in custody" to the courtroom following a luncheon recess. ¹

Payne now argues that he was denied due process of law by these incidents. He points out that he was free on bond when he appeared for trial and contends that the trial judge's remark and his being brought into the courtroom in the custody of the sheriff denied him his right to "the physical indicia of innocence." See Kennedy v. Cardwell, 487 F.2d 101, 104 (6th Cir. 1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974).

The Kentucky Supreme Court addressed and rejected this argument in its opinion affirming Payne's conviction:

We, however, agree with the trial court that "it would be impossible as a practical matter to conduct a trial without the jury seeing some sign that the defendants are not entirely free to come and go as they please." The custody here was minimal, and no error was committed.

Douglas v. Commonwealth, 586 S.W.2d 16, 18 (Ky.1979).

The district court, in denying habeas corpus relief, also examined this argument. It held that, even assuming arguendo that the jury had heard the comment, it was nevertheless "harmless beyond a reasonable doubt" ² in light of the "overwhelming" evidence against the defendants. ³

Although security measures may deprive a defendant of some of the physical indicia of innocence, generally "the degree of security exercised over the person of the defendant is within the trial judge's discretion." Passman v. Blackburn, 652 F.2d 559, 568 (5th Cir. 1981). See also United States v. Gambina, 564 F.2d 22, 24 (7th Cir. 1977) and Marion v. Commonwealth, 269 Ky. 729, 108 S.W.2d 721, 723 (1937). It should be noted that the record does not indicate that Payne was either shackled at any time during the trial ⁴ or dressed in prison clothing. ⁵ Instead, Payne urges that he was denied due process of law by virtue of the remark of the trial judge and by being returned to the courtroom "in the custody" of the sheriff following a recess.

In United States v. Archie, 656 F.2d 1253 (8th Cir. 1981), the appellant argued that the fact the jury saw him in the custody of United States Marshals "impressed upon the jury that he was dangerous and, thereby, prejudiced him." Id. at 1258. The appellant in Archie had been accompanied by two marshals in street attire through the door leading from the lock-up after a morning recess while the jurors were seated. The court did not find any prejudice in the incident. Id. Similarly, in United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979), cert. denied sub nom. Antone v. United States, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980), and Miller v. United States, 446 U.S. 912, 100 S.Ct. 1842, 64 L.Ed.2d 266 (1980), the defendants were observed by the jury venire entering the courtroom flanked by non-uniformed United States Marshals. In affirming the trial court's denial of the defendants' motions for mistrial, the court noted that "(t)he conditions under which defendants were seen were routine security measures rather than situations of unusual restraint such as shackling of defendants during trial." Id. at 549.

In both Archie and Diecidue the courts found no showing of actual prejudice. See also United States v. Robinson, 645 F.2d 616, 617-18 (7th Cir. 1981) (prejudice cannot be presumed) and Dupont v. Hall, 555 F.2d 15, 17 (1st Cir. 1977) (heavy burden on defendant to justify a mistrial). In the instant case Payne concedes that it is uncertain whether the jury heard the remark complained of. While up to this point we have assumed, as did the district court, that the remark was heard, there is no proof that it was. In United States v. Wright, 564 F.2d 785, 789 (8th Cir. 1977), the appellants were held not prejudiced by the fact that there "was a possibility" that one of the jurors may have seen the defendants handcuffed in the custody of a marshal. A similar argument was recently disposed by the same court in United States v. Carr, 647 F.2d 867 (8th Cir. 1981):

Appellant in the instant case argues that because several prospective jurors "likely" saw him in handcuffs and a waist chain in a courthouse hallway before trial, he was denied a fair trial. We reject this contention and note that a mere unsubstantiated allegation that prospective jury members "likely" saw a defendant in custody does not satisfy a defendant's burden of affirmatively showing that he was prejudiced.

Id. at 868.

In light of the foregoing discussion, it is clear that Payne was not denied due process of law by the comment of the trial judge or by being in the custody of the sheriff during the trial. The evidence against Payne was overwhelming, and the appellant did not satisfy his burden of showing prejudice. His argument regarding custody, therefore, must be rejected.

III.

Payne next asserts that the trial court's failure to give the instruction on presumption of innocence that he tendered and its failure in general to instruct the jury on the presumption of innocence denied him a fair trial.

The Supreme Court has previously examined the necessity of the presumption of innocence instruction in light of an accused's right to a fair trial. In Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), the Court held "that on the facts of this case the trial court's refusal to give petitioner's requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment." Id. at 490 (emphasis added).

A year later, in Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979), the Court made clear that an instruction on the presumption of innocence is not constitutionally required in every criminal case....