Sinclair v. Turner, 71-1047.

• Decision Date: 13 October 1971
• Docket Number: No. 71-1047.,71-1047.
• Citation: 447 F.2d 1158
• Parties: Jean SINCLAIR, Plaintiff-Appellant, v. John W. TURNER, Warden, Utah State Prison, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

447 F.2d 1158 (1971)

Jean SINCLAIR, Plaintiff-Appellant, v. John W. TURNER, Warden, Utah State Prison, Defendant-Appellee.

No. 71-1047.

United States Court of Appeals, Tenth Circuit.

September 10, 1971.

Rehearing Denied October 13, 1971.

James M. Gansinger, Denver, Colo., for plaintiff-appellant.

David S. Young, Asst. Atty. Gen., Salt Lake City, Utah (Vernon B. Romney, Atty. Gen., and Lauren N. Beasley, Chief Asst. Atty. Gen., on the brief), for defendant-appellee.

Before BREITENSTEIN, McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Jean Sinclair was convicted following a sixteen-day State jury trial in the District Court of Salt Lake City, Utah, of the crime of first degree murder of one Don LeRoy Foster. Following a jury recommendation for leniency the Court sentenced Sinclair to life imprisonment. Her conviction was affirmed by the Utah Supreme Court. State v. Sinclair, 15 Utah 2d 162, 389 P.2d 465 (1964). In June, 1966, Sinclair filed a habeas corpus application with the same trial court. An evidentiary hearing was held and the application denied. She appealed that denial to the Utah Supreme Court, which affirmed the lower court. Sinclair v. Turner, 20 Utah 2d 126, 434 P.2d 305 (1967). The parties here agree that when Sinclair filed her application with the Federal District Court below she had exhausted her available state remedies.

Sinclair appeals here from the order of the United States District Court denying her application for writ of habeas corpus. At pre-trial it was stipulated that one of the petitioner's claims for determination was that "under the totality of circumstances" Sinclair was deprived of her right to a fair trial secured by the 6th and 14th Amendments to the Constitution of the United States. The court below took judicial notice of all State Court records and proceedings. An evidentiary hearing was not held. The Court denied relief finding "that under all of the facts and circumstances surrounding her trial that the petitioner was not deprived of the right to a fair trial as secured by the 6th and 14th Amendments to the Constitution of the United States, or at all * * *". In light of that finding this court will consider each of the appellant's contentions as if they had been specifically argued and rejected by the court below. The court determined that Sinclair had received a full and fair evidentiary hearing in the Utah State Courts, both at the time of original trial and in collateral post-conviction and habeas proceedings. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L.Ed.2d 770 (1963). The Court found, by independent examination, that the State Court proceedings were presumptively correct, citing 28 U.S.C. § 2254(d). The writ was denied August 23, 1970. This appeal is from that order.

The United States Supreme Court in Townsend v. Sain, supra, held that the Federal District Court has the power to receive evidence and try the facts anew on a habeas corpus petition and must do so "where the facts are in dispute * * * if the habeas applicant did not receive a full and fair evidentiary hearing in the State Court, either at the time of trial or in a collateral proceeding," and that the court is not limited to a study of the undisputed portions of the State court records.

In lieu of application of the appellate review rule holding that the evidence must be viewed in the light most favorable to the government in order to determine if the evidence, direct and circumstantial, coupled with all reasonable inferences to be drawn therefrom, is substantial in justification of the jury verdict of guilt beyond a reasonable doubt, Lewis v. United States, 420 F.2d 1089 (10th Cir. 1970); Mares v. United States, 409 F.2d 1083 (10th Cir. 1968), cert. denied 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed.2d 564 (1969), we proceed in accordance with the pertinent provisions of 28 U.S.C.A. § 2254(d).¹

Federal habeas corpus does not serve as an additional appeal from State court conviction. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Sufficiency of evidence to support a State conviction raises no Federal constitutional question, and cannot be considered in Federal habeas proceedings by State prisoners. Linebarger v. State of Oklahoma, 404 F.2d 1092 (10th Cir. 1968), cert. denied 394 U.S. 938, 89 S.Ct. 1218, 22 L.Ed.2d 470 (1969); Williams v. Wainwright, 414 F.2d 806 (5th Cir. 1969). The guilt or innocence of an accused person when determined by a State court is not subject to review by Federal courts in habeas corpus proceedings. A State prisoner is entitled to relief in Federal courts only when rights guaranteed by the United States Constitution have been denied him. Opie v. Meacham, 419 F.2d 465 (10th Cir. 1969), cert. denied 399 U.S. 927, 90 S.Ct. 2239, 26 L.Ed.2d 793 (1970); Wagenknecht v. Crouse, 344 F.2d 920 (10th Cir. 1965).

We have reviewed all of the records, including the original State trial record. Any reference herein to those records is, under the rules above referred to, limited to contentions presented by appellant Sinclair alleging that her rights guaranteed by the Constitution of the United States have been denied. Mathis v. People of State of Colorado, 425 F.2d 1165 (10th Cir. 1970).

I.

Sinclair contends that the lower court erred in its ruling that she had not been denied her rights guaranteed by the 6th and 14th Amendments and the due process clause of the Constitution of the United States by reason of the State trial court's limitation on cross-examination of the State's principal witness, Carl Kuehne, thus preventing Sinclair from attacking Kuehne's credibility in violation of an accused's right to confrontation of witnesses against her.

The prosecutor, soon after calling Kuehne as a State witness, fully developed that Kuehne had been convicted and confined in the Utah State Penitentiary following a 1952 felony charge of assault with a deadly weapon; that Kuehne had escaped from the penitentiary, gave himself up and was returned to the penitentiary; that he was released in December of 1959. Kuehne had been attending the University of Utah since his release, and at the time of trial in February of 1963 was a senior majoring in mathematics. The State made no attempt to conceal Kuehne's felony record or otherwise deprive the jury of knowledge concerning his felony conviction. It presented his record so that, in effect, his credibility was at issue at the outset. United States v. Perea, 413 F. 2d 65 (10th Cir. 1969), cert. denied 397 U.S. 945, 90 S.Ct. 960, 25 L.Ed.2d 125 (1970).

Sinclair contends that the trial court committed prejudicial error in curtailing cross-examination of Kuehne with respect to his felony conviction. On cross-examination Kuehne was asked what he had been convicted of. When he responded that he had been convicted of assault with a deadly weapon, he was asked, "What was the weapon?" The objection lodged to this question by the prosecutor was sustained. Sinclair cites a number of decisions holding that the right of a defendant to engage in extensive cross-examination is an essential requirement for a fair trial. None of these decisions, however, relate specifically to the scope and extent of cross-examination with reference to prior convictions. In effect, Sinclair contends that the Court erred in not permitting cross-examination of Kuehne with respect to the details of the felony of which he had been convicted. The Utah Supreme Court ruled on this issue in State v. Kazda, 14 Utah 2d 266, 382 P.2d 407 (1963). There the Court opined on the right of a prosecutor to question the accused regarding prior felony convictions in relationship to his credibility as a witness. The Court held that when an accused voluntarily takes the witness stand he may be asked whether or not he has been convicted of a felony, and, if he responds in the affirmative, he may be asked only the nature of the felony. The Court ruled that details or circumstances surrounding the felony which the accused was convicted of may not be inquired into except under unusual circumstances, i. e., where the inquiry would tend to show a scheme, plan, modus operandi, or the like. In the case at bar when the prosecutor's objection to the question "What was the weapon?" was sustained by the Court, Sinclair's attorney did not make a specific offer of proof. Accordingly, there is nothing in the record indicating that Kuehne's answer would have met the "unusual circumstances" exceptions referred to in State v. Kazda, supra. This court has held that when a witness's credibility has been impeached by his admission of prior felony convictions, it is within the trial court's discretion to refuse to permit further inquiry or to develop extrinsic evidence relative thereto. Butler v. United States, 408 F.2d 1103 (10th Cir. 1969); United States v. Perea, supra; Foster v. United States, 282 F.2d 222 (10th Cir. 1960).

Sinclair claims error on the part of the trial court in not permitting certain interrogation of Kuehne on cross-examination relating to his alleged psychiatric record. Defense counsel asked Kuehne whether he had ever gone to psychiatrists for evaluation and treatment. He stated that he had undergone psychiatric evaluation and treatment while in prison as a matter of "standard procedure". He also acknowledged visiting with a psychiatrist who lived next door to his family's home in New Jersey, but he denied that this relationship was one of "doctor-patient". Counsel then asked Kuehne whether or not he had been discharged from the army with a "psycho discharge". Kuehne responded negatively. The prosecutor objected on the grounds that the interrogation was without proper foundation. The Court sustained the objection. Thereafter defense counsel submitted an offer of proof indicating that through further cross-examination, with specific reference to certain psychiatrists, dating back to 1948, 1951 and 1959, it would be established that Kuehne was a "psychopathic...