Raper v. Mintzes

Decision Date27 April 1983
Docket Number82-1184,Nos. 82-1139,s. 82-1139
PartiesLarry RAPER, Petitioner-Appellant, Cross-Appellee, v. Barry MINTZES, Respondent-Appellee, Cross-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Arthur J. Tarnow, Detroit, Mich., for petitioner-appellant, cross-appellee.

Frank J. Kelley, Atty. Gen. of Mich., Thomas Nelson, Asst. Atty. Gen. (argued), Lansing, Mich., for respondent-appellee, cross-appellant.

Before JONES and CONTIE, Circuit Judges, and GIBSON, Senior Circuit Judge. *

CONTIE, Circuit Judge.

Both parties appeal from the district court's order granting in part and denying in part the petitioner's claim for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. The central issue on appeal is whether comments made by the prosecutor in closing argument about the uncontradicted nature of certain evidence were unconstitutional references to the petitioner's failure to testify. We find that they were and affirm the district court's judgment in all respects.

I

In early 1976, the petitioner Larry Raper separated from his wife Brenda and Brenda filed for divorce. Shortly thereafter, Brenda Raper began dating Howard "Sam" Kobel. On March 21, 1976, the police were summoned to Brenda Raper's residence because the petitioner had ransacked the house. A television, a glass door and some dishes had been broken. Larry Raper told the police that he had lost his temper after finding another man with his wife. He also made a statement to the effect that "If I can't have her, nobody can." Several weeks later, Larry Raper saw his estranged wife dancing with Sam Kobel in a local bar. He assaulted Kobel in the bar and again in the parking lot after being asked to leave by the police. One week later, the petitioner came to Brenda's house at 11:00 p.m. Sam Kobel was watching television in the living room and two of Kobel's children were in a bedroom. Brenda answered Larry Raper's knock at the kitchen door and, according to Kobel, asked Larry "What are you doing here?" and "What do you have that for?" Kobel testified that he did not hear any response to Brenda's questions.

Shots were fired and Kobel ran into the kitchen where he saw Brenda Raper fall before him. Kobel ran out of the kitchen and into the bedroom where his two daughters were staying. He lifted both girls off the bed and pushed them down between the bed and the wall. Larry Raper entered the bedroom carrying his rifle. He and Kobel struggled for the gun and Kobel was shot in the neck. The petitioner then shot Kobel's children at close range and fled, leaving his rifle in the house. Only Sam Kobel survived the attack.

The petitioner did not testify in his own defense. Only two defense witnesses were called. A neighbor of Brenda Raper's testified that she saw Sam Kobel's truck at Brenda's house frequently and a psychiatrist who had been treating Larry Raper for depression testified that Raper had been optimistic about a reconciliation with his wife. The psychiatrist also testified that Raper was under control when he last saw him.

On closing argument, defense counsel speculated as to what may have been said at the kitchen door before Raper killed his wife. Defense counsel also told the jury, as he had in opening argument, that the petitioner had the right not to testify. On rebuttal, the prosecutor attacked the defense counsel's speculation as to what happened at the kitchen door, noting that Sam Kobel's version was uncontradicted. In the course of his rebuttal argument, the prosecutor made several references to the uncontradicted nature of the evidence. No objection was made to the prosecutor's argument. Following closing arguments, the trial court instructed the jury that the petitioner had no obligation to testify or to prove his innocence, and that the jury was not permitted to consider his failure to testify for any purpose.

The petitioner was convicted of first degree murder of his wife, second degree murder of Kobel's children and of assault with intent to murder Kobel. He was sentenced to life imprisonment on each conviction. On direct appeal, the Michigan Court of Appeals affirmed the convictions. The petitioner subsequently filed an application for delayed appeal, challenging for the first time the prosecutor's comments as to the uncontradicted nature of some of the evidence. The Michigan Court of Appeals denied the application for delayed appeal and the Michigan Supreme Court refused to review that decision.

The district court found that the prosecutor's comments about the uncontradicted or unrefuted testimony of Sam Kobel were unconstitutional references to the petitioner's failure to testify since he was the only person who could have contradicted Kobel's testimony. The court granted the petition for habeas relief as to the first degree murder conviction, finding that the constitutional error was not harmless beyond a reasonable doubt with respect to the first degree murder issue of premeditation. However, the district court did find the error harmless as to the other convictions and rejected the balance of the petitioner's claims.

II

The State contends that the petitioner is barred from challenging the prosecutor's argument because of a procedural default in failing to object to the prosecutor's argument at trial. 1

In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court held that a state prisoner barred by a procedural default from raising a claim in state court could not litigate that same claim in a collateral challenge to his conviction pursuant to 28 U.S.C. Sec. 2254 absent a showing of cause and prejudice. The Sykes rule was designed to minimize federal intrusion into the operation of the criminal justice systems of the states by insuring that, in the usual case, the state courts would have the first opportunity to correct constitutional errors. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982). Sykes was also based on the premise that the principle of finality was best served by a rule that allowed a state to enforce its own rules of procedural default. Id.

Where a state appellate court does not rely at all on a procedural default but instead reaches the merits of a constitutional claim, the cause and prejudice standard of Sykes does not apply. County Court of Ulster County v. Allen, 442 U.S. 140, 147-54, 99 S.Ct. 2213, 2219-23, 60 L.Ed.2d 777 (1979); Hockenbury v. Sowders, 620 F.2d 111 (6th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981). In such a case, the rationale of Sykes is inapplicable since the state itself has chosen not to apply its procedural rules so as to bar the claim and the state has had the first opportunity to address the constitutional question.

Thus, proper application of Sykes requires the federal court considering a Sec. 2254 petition to determine the basis of the state court's decision. The difficulty in this case lies in determining the exact basis for the Michigan Court of Appeals' denial of the petitioner's application for leave to file a delayed appeal. The entire order of the Court of Appeals is set out below:

In this cause an application for delayed appeal is filed by defendant-appellant, and an answer in opposition thereto having been filed, and due consideration thereof having been had by the Court,

IT IS ORDERED that the application be, and the same is hereby DENIED for lack of merit in the grounds presented.

State v. Raper, No. 48555 (Mich.Ct. of App., filed June 9, 1980). The order appears to be a standard form denial of leave to file a delayed appeal and gives no indication as to the basis for the decision. In this context, the state court's use of the word "merit" in its order does not conclusively establish that the decision was based on the merits.

Where the basis for the state court's decision is unclear, we believe that the federal habeas court must look to the arguments presented to the state court. See, Martinez v. Harris, 675 F.2d 51 (2d Cir.1982). In Martinez, the Second Circuit announced the following rules for ascertaining the basis of the state court's decision: (1) if the state prosecutor only argued the merits of the petitioner's claim before the state court and failed to raise the procedural default issue, the federal court may assume that the state court ruled only on the merits; (2) if the prosecutor relied solely on the procedural default, the federal court may assume that that was the only basis for the state court's decision; and (3) if the prosecutor argued in the alternative, the federal court may assume that the state court did not rely solely on the merits unless it says so. Id. at 54-55.

In this case, an examination of the State's briefs opposing the petitioner's application for delayed appeal reveals that the State did not raise the issue of the petitioner's failure to object at trial. We are unwilling to apply Sykes in a case such as this one where the State does not present the procedural default argument to the state court and the state court does not state that a procedural default was a basis for its decision. We therefore find that the district court correctly considered the merits of the petition.

III

The fifth amendment provides that "no person ... shall be compelled in any criminal case to be a witness against himself...." An important corollary to that right is that neither a prosecutor nor a trial judge may comment upon a criminal defendant's failure to testify. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

The rule set forth in Griffin applies to indirect as well as direct comments on the failure to testify. Cases involving direct comments 2 pose little difficulty as the court must reverse unless the prosecution can demonstrate that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Eberhardt v....

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