Rhay v. Browder

• Decision Date: 05 February 1965
• Docket Number: No. 19466.,19466.
• Citation: 342 F.2d 345
• Parties: B. J. RHAY, Superintendent, Washington State Penitentiary, et al., Appellant, v. James E. BROWDER, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

342 F.2d 345 (1965)

B. J. RHAY, Superintendent, Washington State Penitentiary, et al., Appellant, v. James E. BROWDER, Appellee.

No. 19466.

United States Court of Appeals Ninth Circuit.

February 5, 1965.

John J. O'Connell, Atty. Gen., of Washington, Stephen C. Way, Asst. Atty. Gen., of Washington, Olympia, Wash., for appellant.

Anthony Arntson, Yakima, Wash., for appellee.

Charles O. Carroll, Pros. Atty. for King County, James E. Kennedy, David W. Soukup, William L. Paul, Jr., Deputy Pros. Attys. for King County, Seattle, Wash., for amicus curiae, Prosecuting Attorney, King County.

Before MERRILL, DUNIWAY and ELY, Circuit Judges.

DUNIWAY, Circuit Judge:

Appellant is the superintendent of the Washington State Penitentiary, and the appeal is from an order of the district court granting a writ of habeas corpus at the instance of appellee Browder, a prisoner. We reverse.

Browder was convicted in the Washington state court on six counts of forgery on October 6, 1961. The record in the state trial shows that Browder passed six forged checks, one to a jewelry store on November 27, 1960, one to a tavern on November 30, one to an automobile towing company on December 1, and three to the same tavern on December 1. All of these checks were signed with the name "Byron D. Hunt." Hunt testified that these were his "personalized" checks, that he lost his check book on or about November 22, 1960, that he had not authorized anyone to write his name on the checks or to draw on his account, that he did not know Browder, and that he had not authorized Browder to sign Hunt's name on Hunt's checks. Browder took the stand. He testified that early in November he became acquainted with Hunt, went with Hunt to the latter's apartment, and that the two there engaged in a prolonged drinking bout. He said that Hunt offered him a job. He also said that Hunt got so drunk that he could not write his own name, and that Hunt authorized him to write Hunt's name on Hunt's checks and cash them. He claimed that he was authorized to cash Hunt's checks up to a total of $300. He took Hunt's check book with him when he left Hunt's apartment. He said that Hunt's name, signed on each of the six checks was in his (Browder's) handwriting.

In the course of instructing the jury, the trial court gave the following instruction: (No. 7½)

"You are instructed that the adoption of another name or an assumed name is permissible if the purpose involved is an honest one. The burden is upon the defendant to show that he adopted the name for an honest purpose, or that he had used it for any length of time, or for a purpose other than to perpetrate the crime of forgery as charged in this case."

The court also instructed:

"You are instructed that if you find that Byron D. Hunt gave the defendant authority to sign his name to the checks referred to in the amended information, then defendant is not guilty of forgery."

The court had previously instructed the jury as to each of the six counts separately, regarding the necessary elements of the offense. Each such instruction was prefaced: "* * * you must be convinced by legal and competent evidence beyond a reasonable doubt that * * *." After stating the elements of the offense, the instruction continued, in each case, by saying: "If you find from the evidence admitted in this case that the state has proved beyond a reasonable doubt the foregoing elements of the crime charged" then the jury should convict, but that if the evidence "fails to establish beyond a reasonable doubt one or more of the foregoing elements," then the jury should acquit.

It also instructed, near the end of its charge, and after giving instruction No. 7½:

"You are instructed that the law presumes a defendant to be innocent until proven guilty beyond a reasonable doubt. This presumption is not a mere matter of form, but it is a substantial part of the law of the land, and it continues throughout the entire trial and until you have found that this presumption has been overcome by the evidence beyond a reasonable doubt."

Browder's counsel excepted to instruc-No. 7½ in the following language:

"Defendant excepts to Court\'s Instruction No. 7½ on the ground that it constitutes a comment upon the evidence and assumes the existence of a fact which is in dispute, the question of whether or not the defendant ever adopted the name of another. We feel this will be highly prejudicial to the jury and is therefore improper."

On appeal to the Washington Supreme Court, Browder contended that instruction No. 7½ unlawfully shifted the burden of proof to him. As to this, the Supreme Court of Washington said:

"The exception to the instruction did not direct the trial court\'s attention to any contention that there was an improper statement of the burden of proof; neither was such claim made at any time during the trial or on the motion for a new trial. Under such circumstances, we cannot consider the defendant\'s assignment of error seeking to raise that issue. Miller v. Staton (1961), 58 Wash.2d 879, 365 P.2d 333; Owens v. Anderson (1961), 58 Wash. 2d 448, 364 P.2d 14; State v. Cogswell (1959), 54 Wash.2d 240, 339 P.2d 465; Patterson v. Krogh (1957), 51 Wash.2d 73, 316 P.2d 103; Peerless Food Products Co. v. Barrows (1957), 49 Wash.2d 879, 307 P.2d 882; and State v. Lyskoski (1955), 47 Wash.2d 102, 287 P.2d 114." (State v. Browder, 1963, 61 Wash.2d 300, 301-302, 378 P.2d 295, 296-297)

The district court held that the instruction "was in fact erroneous and did transfer the burden of proving innocence upon the petitioner, in violation of his constitutional right of due process." It ordered that unless Browder be given a new trial by the state within ninety days, he should be discharged.

We think that the court was in error.

The state urges that Browder failed to exhaust his state remedies, citing our decision in Chavez v. Dickson, 9 Cir., 1960, 280 F.2d 727, 733-734 where we held:

"State remedies will not be deemed to have been exhausted within the meaning of 28 U.S.C.A. § 2254 if the failure to obtain a final state adjudication was due to inexcusable nonconformity with state procedural requisites. No reason was offered in the district court or in this court as to why appellants should be excused for their failure to make timely objection in the state trial court to the questioned remarks of the prosecution and trial judge."

We there cited: Brown v. Allen, 344 U.S. 443 at page 487, 73 S.Ct. 397, 97 L.Ed. 469; Application of Hodge, 9 Cir., 262 F.2d 778-782; Daugharty v. Gladden, 9 Cir., 257 F.2d 750, 756. The state also urges that, because the Supreme Court of Washington did not reach the question on appeal, Browder could have raised it by a petition to the Washington court for a writ of habeas corpus. We suspect that this would have been an exercise in futility. This is because we think that the Washington court would have applied the same principles as we applied in Chavez v. Dickson, supra, and denied the writ. We do not rest our decision on this ground. (See Brown v. Allen, supra).

We do think, however, that there has been either "an inexcusable nonconformity with the state procedural requisites" (Chavez v. Dickson, supra) or a waiver of the point by failing to take proper objection to the instruction, and that on either basis the district court should have denied the writ without reaching the merits of Browder's constitutional claim.

In Henry v. State of Mississippi, 85 S.Ct. 564, decided January 18, 1965, the Supreme Court seems to equate the "adequate state procedural ground" rule with waiver. (Footnote 3, p. 567) We think that if ever a procedural rule does "serve a legitimate state interest" (Henry v. State of Mississippi, supra, p. 567), the rule applied by the Washington court does. It has been in effect at least since 1895. (State v. Williams, 1895, 13 Wash. 335, 340, 43 P. 15, 16) It has been applied ever since. (See the more than forty cases collected in 4A West's Washington Digest Annotated, Criminal Law.). It is comparable to Rule 30, F.R.Crim.Proc., which has governed federal trials and appeals since the Supreme Court adopted it in 1941, and has been applied in hundreds of cases by every Court of Appeals in the land, including this one. It has the same salutary purpose as Rule 30 — to enable the judge to correct the error before the case is submitted to the jury, thus avoiding unnecessary appeals and new trials. Herzog v. United States, 9 Cir., 1956, 235 F.2d 664, 667; Lyons v. United States, 9 Cir., 1963, 325 F.2d 370, 373. For this reason we have held that "painstaking compliance" is necessary. (Brown v. United States, 9 Cir., 1955, 222 F.2d 293) We think that a state court is just as entitled to adopt and to enforce such a rule as are the federal courts. We note that most states appear to apply a similar rule. (See 4 C.J.S. Appeal and Error § 334, pp. 1083-1091, citing cases from 36 states; 5 Am.Jur.2d, Appeal and Error, § 623, p. 81, citing cases from 21 states) If, as we have held, failure to comply with Rule 30 deprives a federal defendant of the right to claim that an instruction is erroneous (Noah v. United States, 9 Cir., 1962, 304 F.2d 317, 319; Gilbert v. United States, 9 Cir., 1962, 307 F.2d 322, 326; Claypole v. United States, 9 Cir., 1960, 280 F.2d...