Quigg v. Crist

• Decision Date: 27 December 1978
• Docket Number: No. CV-76-97-BLG.,CV-76-97-BLG.
• Citation: 466 F. Supp. 544
• Parties: Gary L. QUIGG, Petitioner, v. Roger W. CRIST, Warden of the Montana State Prison, Respondent.
• Court: U.S. District Court — District of Montana

466 F. Supp. 544

Gary L. QUIGG, Petitioner, v. Roger W. CRIST, Warden of the Montana State Prison, Respondent.

No. CV-76-97-BLG.

United States District Court, D. Montana, Billings Division.

December 27, 1978.

COPYRIGHT MATERIAL OMITTED

Gary E. Wilcox, Billings, Mont., for petitioner.

J. Mayo Ashley, Asst. Atty. Gen., for the State of Montana, Helena, Mont., for respondent.

MEMORANDUM OPINION AND ORDER

BATTIN, Chief Judge.

Gary L. Quigg, the petitioner in this case, seeks a writ of habeas corpus based on various constitutional errors during trial. Previously Quigg petitioned the Court for a writ of habeas corpus based on the legality of search warrants. Quigg v. Estelle, No. 71-1007. An appeal of this Court's refusal to grant the relief was taken to the Ninth Circuit and a writ of certiorari was sought from the United States Supreme Court, both without success.

Quigg was convicted of first degree murder in Yellowstone County in April, 1969. The conviction was affirmed by the Montana Supreme Court. State of Montana v. Quigg, 155 Mont. 119, 467 P.2d 692 (1970).

Quigg exhausted his state court remedies in this case by his appeal to the Montana Supreme Court for post-conviction relief. In re Quigg, 168 Mont. 512, 544 P.2d 441 (1976).

The facts leading up to Quigg's conviction are as follows. Lee Robbins, a Billings drug salesman, was found murdered on April 8, 1968. Police investigation into the murder revealed little evidence until August. After a bar near Park City, Montana, was burglarized, it was discovered that the bullets which killed the guard dog matched the bullet which killed Lee Robbins. The gun was later located in a Billings pawn shop and traced to Quigg. Gary L. Quigg and two others were arrested for the murder of Lee Robbins, but only Quigg was charged.

State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1962).

I. Question Regarding Petitioner's Post-Arrest Silence

In refuting his possession of the murder weapon in this case, Quigg testified that he had discovered the gun in a paper sack left in a vacant lot by three Indians.

The prosecutor in cross-examining Quigg asked a series of questions about conversations concerning the gun that Quigg might have had with his friends shortly after he claimed to have made the discovery. Ending that series of questions, the prosecutor asked:

Q: And you didn't tell the police when you were arrested about seeing those Indians put the sack in the lot?

A: No, I didn't.

Quigg claims this question was a comment about his right to remain silent and a violation of his Fifth and Fourteenth Amendment rights. The state argues that this line of questioning was merely an effort to cast doubt on the credibility of Quigg's testimony, not a comment on Quigg's silence.

Recent cases have found a prosecutor's use of an arrestee's silence in impeachment of an explanation subsequently given to violate the Due Process clause of the Fourteenth Amendment. The Court found post-arrest silence to be ambiguous and believed it would be fundamentally unfair to allow that silence to be used to impeach subsequent testimony after the arrestee was impliedly assured that silence would carry no penalty. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). See also, United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Fowle v. United States, 410 F.2d 48 (9th Cir. 1969).

But even where the prosecution has committed constitutional error by inquiring into post-arrest silence, the error may be harmless error. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), requires that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.

Considering a case where the prosecutor made two improper comments during the closing argument regarding the defendant's refusal to testify, the Ninth Circuit found harmless error. The Court applied the test of Anderson v. Nelson, 390 U.S. 523, 524, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968). Where comments were not extensive, an inference of guilt from silence was not stressed to the jury as a basis for conviction, and there was no substantial evidence which favored an acquittal, the error was harmless. United States v. Sigal, 572 F.2d 1320, 1323 (9th Cir. 1978) (citations omitted). See also, United States v. Wycoff, 545 F.2d 679 (9th Cir. 1976).

In United States v. Lopez, 575 F.2d 681, 685-686 (9th Cir. 1978), the Court found plain error to allow review of prosecutor's statements regarding the defendant's silence. But on review, the Court found the statements to be harmless error applying the Anderson v. Nelson test.

In this case, the Court takes notice of the error made by the prosecutor in inquiring into the defendant's post-arrest silence as a plain error. But applying the Anderson v. Nelson test as accepted by the Ninth Circuit, the prosecutor's error is found to be harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The comment regarding the defendant's post-arrest silence was merely a single question; the comment does not appear to have been stressed to the jury as a basis for conviction and there was no substantial evidence favoring an acquittal.

II. Newly Discovered Evidence

The state presented evidence during the trial that tended to link Quigg with the Robbins car. The state's theory was that after the murder Quigg took the decedent's car and drove to a parking lot a few blocks from the house where he was living. The car was found on the vacant lot the morning after the murder.

While the jury was deliberating, four previously unknown witnesses came to the attention of the defense attorney. Two of these witnesses' testimony is not material to this appeal. The other two witnesses had seen the Robbins car come into the lot on the night of the murder and saw the driver leave the car. Counter-affidavits to these two witnesses were filed by the police who had investigated the facts and questioned the individuals.

The trial judge heard the motion for a new trial and refused to grant it. In its first review of the case, the Montana Supreme Court examined the statements and found that they added no material evidence likely to produce a different result. State v. Quigg, 155 Mont. 119, 147, 467 P.2d 692 (1970).

The test to be applied in determining whether to issue the writ of habeas corpus is whether the new evidence is material and such that, if presented to a jury at a new trial, would probably produce an acquittal. Shuler v. Wainright, 341 F.Supp. 1061, 1069 (Fla.1972), vacated 491 F.2d 1213 (5th Cir. 1974). The newly discovered evidence must bear upon the constitutionality of the petitioner's detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus. Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) (dictum).

The petitioner argues that the statements of the witnesses who had seen the Robbins car being left in the vacant lot in conjunction with the aiding and abetting instruction establish a violation of the petitioner's Fourteenth Amendment due process rights. The state urges that the decision was properly made within the discretion of the trial judge.

The depositions of the two newly discovered witnesses are before this Court and have been examined, as the affidavits were examined by the Montana District Court and Supreme Court. The statements establish that the two witnesses saw the Robbins car being left at the vacant lot and saw the driver hurriedly leave. They do not identify the driver of the car. Such statements do not establish that the petitioner would probably be acquitted if they were presented in a new trial. It is not fundamentally unfair to deny the petitioner a new trial under these circumstances.

III. Aiding and Abetting Instruction

The court in the second trial gave an instruction characterized by the petitioner as an aiding and abetting instruction. The petitioner contends that this instruction allowed the presentation of a case on one factual theory but allowed the jury to decide the case on a different legal theory, thereby infringing on his Fourteenth Amendment due process rights. No one other than Quigg was ever charged with the murder. In conjunction with the newly discovered evidence on which the trial court refused to grant a new trial, the petitioner claims the error reaches constitutional magnitude.

The state argues that at the time Quigg was convicted Montana did not recognize any distinction in punishment for principals or for those who aid and abet in the crime. Because Quigg was convicted not of aiding and abetting, however, but of first degree murder, the crime with which he was charged, the state argues that the petitioner has failed to show that any substantial right has been impaired.

Errors in the instructions to the jury raise questions of state law and seldom rise to the level of denial of due process in a habeas corpus action. La Brasca v. Misterley, 423 F.2d 708, 709 (9th Cir.), cert. denied, 400 U.S. 838, 91 S.Ct. 77, 27 L.Ed.2d 72 (1970). The Montana Supreme Court has determined that no error was established in giving the challenged instruction which it characterized as the usual felony murder instruction. State v. Quigg, 155 Mont. at 133, 467 P.2d 692 (1970).

The trial court's instruction to the jury cannot constitute a basis for federal habeas corpus relief, unless this error was so prejudicial as to render the trial "fundamentally unfair." Myers v. Rhay, 577 F.2d 504, 511 (9th Cir. 1978); Egger v. United States, 509 F.2d 745, 749 (9th Cir. 1975...