Stump v. Bennett, No. 18920.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtI concur in VAN OOSTERHOUT's dissent
Citation398 F.2d 111
PartiesRonald Maurice STUMP, Appellant, v. John BENNETT, Warden, Iowa State Penitentiary, Fort Madison, Iowa, Appellee.
Decision Date16 December 1968
Docket NumberNo. 18920.

398 F.2d 111 (1968)

Ronald Maurice STUMP, Appellant,
v.
John BENNETT, Warden, Iowa State Penitentiary, Fort Madison, Iowa, Appellee.

No. 18920.

United States Court of Appeals Eighth Circuit.

June 27, 1968.

Certiorari Denied December 16, 1968.


398 F.2d 112
COPYRIGHT MATERIAL OMITTED
398 F.2d 113
James R. McManus, Des Moines, Iowa, for appellant

Kent M. Forney, Special Asst. Atty. Gen., Des Moines, Iowa, for appellee.

Before VAN OOSTERHOUT, Chief Judge, VOGEL, Senior Circuit Judge,* and MATTHES, BLACKMUN, MEHAFFY, GIBSON, LAY, and HEANEY, Circuit Judges.

Certiorari Denied December 16, 1968. See 89 S.Ct. 483.

LAY, Circuit Judge.

Ronald Maurice Stump, a state prisoner, appeals from the denial of his petition for a writ of habeas corpus in federal district court. Stump was convicted of murder in the second degree in the Polk County, Iowa, District Court in the slaying of one Michael Daly. On December 11, 1961, he was sentenced to a term of seventy-five years' imprisonment. Stump asserted as a sole defense at his trial that it was impossible for him to have been present at the place of the crime since he was driving on the highway between Des Moines and Knoxville when the shooting took place. He offered witnesses in an attempt to verify this fact. The state trial court placed upon the defendant the burden of proving his alibi by a preponderance of the evidence. The conviction was affirmed by the Iowa Supreme Court in State v. Stump, 254 Iowa 1181, 119 N.W.2d 210 (1963) (the vote of the Iowa court was 5 to 3, with one judge not participating), cert. denied 375 U.S. 853, 84 S.Ct. 113, 11 L.Ed.2d 80 (1963).

After exhausting his state remedies,1 Stump petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Iowa, alleging among other grounds that the state trial court's instructions placed upon the defendant the burden of proving his sole defense of alibi by the preponderance of the evidence, and that Iowa Code Ann. § 777.18 requires a defendant raising an alibi defense to give to the state timely notice of such defense, as well as the names and addresses of any corroborating witnesses, without a reciprocal exchange of the state's witnesses relating to the same issue. Petitioner claims, as he did below, that both grounds constitute a denial of due process of law under the Fourteenth Amendment. We need not discuss the other grounds raised on this appeal. We hold that the Iowa rule shifting the burden of proof to the defendant reached the level of constitutional error and was prohibited by the Fourteenth Amendment. We reverse and remand with directions.

The due process clause permits a state a wide berth in developing rules of procedure and evidence. Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). A constitutional

398 F.2d 114
violation cannot rest upon our independent judgment or personal appraisal of what seems the fairer or the better procedure. See Leland v. State of Oregon, 343 U.S. 790, 799, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). The fundamental bases of "due process" relate to adequate notice and reasonable opportunity to be heard. Hovey v. Elliott, 167 U.S. 409, 413-418, 17 S.Ct. 841, 42 L.Ed. 215 (1897). Beyond these minimal standards only oppressive and arbitrary state procedural rules command federal review. Federal intervention is justified only when the state law "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934), or frustrates a right "implicit in the concept of ordered liberty," Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937)

We thus reflect cautiously upon the rule before us. Iowa is one of only two states2 which now require a defendant to assume the burden of persuasion by a preponderance of evidence in establishing an alibi. Six other states have permitted instructions which require a defendant to present sufficient evidence of alibi to establish in the minds of the jurors a reasonable doubt of his guilt, but these states do not at any time shift the burden of persuasion as is done under the Iowa rule.3 Analytically, these states simply shift to the defendant the burden of going forward with the evidence as to the alibi itself. All of the seven United States Courts of Appeals that have considered the issue, including this Circuit, agree that in a federal prosecution the burden of persuasion of an alibi defense may not be shifted to the defendant. United States v. Vigorito, 67 F.2d 329, 330 (2 Cir. 1933) (dictum); United States v. Marcus, 166 F.2d 497, 503-504 (3 Cir. 1948); Falgout v. United States, 279 F. 513, 515, 29 A.L.R. 1115 (5 Cir. 1922); Cangelosi v. United States, 19 F.2d 923 (6 Cir. 1927); Glover v. United States, 147 F. 426, 430-433 (8 Cir. 1906); Thomas v. United States, 213 F.2d 30, 32-34 (9 Cir. 1954); Reavis v. United States, 93 F.2d 307, 308 (10 Cir. 1937). And even the Iowa Supreme Court subsequent to the Stump case4 expressed doubt about future applications

398 F.2d 115
of the rule. State v. Post, 255 Iowa 573, 123 N.W.2d 11, 18 (1963). But neither polling other states' positions nor comparing Iowa law with federal procedure is a conclusive ground for a finding on constitutional infirmity. Such weight of authority guides us at most to a "consideration" of whether the rule "offends" principles so fundamental as to be within constitutional protection. Leland v. State of Oregon, 343 U.S. at 798, 72 S.Ct. 1002; cf. Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). We analyze the problem in three parts

I. Is the instruction patently erroneous?

II. Does it violate due process?

III. And if so, considering the instructions as a whole, is it "harmless" constitutional error beyond "a reasonable doubt"? Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

I.

The Iowa trial court instructed the jury, in part, as follows:

"* * * before you can acquit the defendant by reason of this defense alibi you must find that he has established it by a preponderance or greater weight of the evidence bearing upon it."5 (Emphasis ours.)

There exist many bases for considering the instruction erroneous.

(a) The original premise behind placing the burden of proof upon the defendant is that "alibi" is an affirmative defense. See State v. Vincent, 24 Iowa 570 (1868); State v. Stump, supra, 119 N.W.2d at 218. This view has now been rejected by almost every state as well as by all federal courts which have had the proposition before them. See, e. g., Halko v. State, 4 Storey 180, 54 Del. 180, 175 A.2d 42, 48-49 (1961); Commonwealth v. Bonomo, 396 Pa. 222,

398 F.2d 116
151 A.2d 441, 444-446 (Pa.Sup.Ct.1959); State v. Garvin, 44 N.J. 268, 208 A.2d 402 (1965); State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701, 706-709 (1943). In asserting alibi the defendant simply denies the possibility of his having committed the crime by reason of being elsewhere when it was committed, whereas an affirmative defense generally applies to justification for his admitted participation in the act itself. See 9 Wigmore, Evidence § 2512 (3d ed. 1940); McCormick, Evidence § 321 at 683 (1954); 2 Underhill, Criminal Evidence § 441 (5th ed. 1956); Note, 49 Iowa L. Rev. 590 (1964)

(b) The instruction itself is inconsistent and confusing, as is pointed out by the federal district court below. The jury is told that before it can acquit the defendant by reason of this defense the defendant must establish it by the preponderance of evidence. Yet the jury is also told that if any evidence creates a reasonable doubt as to the crime as a whole, then it can return a verdict of not guilty. This court, of course, has consistently adhered to the general rule that instructions are to be viewed in their entirety. See, for example, Smith v. Wire Rope Corp. of America, 383 F.2d 186, 188 (8 Cir. 1967), and Jiffy Markets, Inc. v. Vogel, 340 F.2d 495, 500 (8 Cir. 1965). But even when so viewed, the presence of serious confusion here as to burden of proof seems inescapable. If we presume, as we must, that the jury follows the court's instructions, which instruction is the jury to follow?

(c) Upon a plea of alibi, the presumption of innocence is permanently shattered as to the evidence relating to (1) the presence of the defendant, (2) the time, and (3) the place of the crime itself. In Glover v. United States, 147 F. at 431, this court pointed out that proof of alibi is a denial of the essential elements of the crime. This court said:

"Included in the indictment is the charge that the defendant did then and there commit the assault. Whereby the prosecution undertook to show by evidence that the defendant was present at the time and place. On this issue thus tendered the burden rested upon the prosecution. It never shifted. So when the defendant introduced evidence to show that he was not `then and there\' present, he was but rebutting the proof offered by the prosecution tending to maintain the allegation that he was then and there. The protection of any reasonable doubt in favor of the defendant applies in such instance as to any other affirmative issue tendered in the charge."

(d) By shifting the burden of proof to a person who claims to have been elsewhere at the time of the crime, there is created an irrational and arbitrary presumption of guilt. It arises not by reason of a proof of fact from which a fair inference might be drawn but from the mere happening that the defendant offers testimony in an attempt to establish innocence. When this occurs, unless the defendant can succeed in overbalancing the state's evidence, the jury is expressly told he cannot be acquitted by reason of his sole claim to innocence. There is thus a prejudgment of "a conclusion which the jury should reach of its own volition....

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116 practice notes
  • Leavitt v. Arave, No. 01-99008.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 14, 2004
    ...the instructions have some internal inconsistency and could allow a jury to misunderstand the prosecution's burden. Cf. Stump v. Bennett, 398 F.2d 111, 121-22 (8th Cir.1968) (a flawed alibi instruction can undermine a jury's understanding of reasonable doubt). But it is not reasonably likel......
  • Hamilton v. Nix, No. 84-2089
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 12, 1987
    ...18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967); Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968); Stump v. Bennett, 398 F.2d 111, 121 (8th Cir.1968). The state produced considerable evidence tending to show that Hamilton was at the Pappas residence near the time of th......
  • State v. Kopa, No. 15708
    • United States
    • Supreme Court of West Virginia
    • December 15, 1983
    ...61 L.Ed.2d 39 (1979). See also Simmons v. Dalsheim, 543 F.Supp. 729 (S.D.N.Y.1982), aff'd, 702 F.2d 423 (2d Cir.1983); Stump v. Bennett, 398 F.2d 111 (8th Cir.), cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968). [173 W.Va. 49] The instructions in the case before us, when rea......
  • Berrier v. Egeler, No. 77-1100
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 6, 1978
    ...34 L.Ed.2d 335 (1972) (exculpatory accomplice testimony); Dixon v. Hopper, 407 F.Supp. 58 (M.D.Ga.1976) (alibi defense); Stump v. Bennett, 398 F.2d 111 (8th Cir.), Cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968) (alibi defense); United States v. Ambrose, 483 F.2d 742 (6th C......
  • Request a trial to view additional results
116 cases
  • Leavitt v. Arave, No. 01-99008.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 14, 2004
    ...the instructions have some internal inconsistency and could allow a jury to misunderstand the prosecution's burden. Cf. Stump v. Bennett, 398 F.2d 111, 121-22 (8th Cir.1968) (a flawed alibi instruction can undermine a jury's understanding of reasonable doubt). But it is not reasonably likel......
  • Hamilton v. Nix, No. 84-2089
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 12, 1987
    ...18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967); Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968); Stump v. Bennett, 398 F.2d 111, 121 (8th Cir.1968). The state produced considerable evidence tending to show that Hamilton was at the Pappas residence near the time of th......
  • State v. Kopa, No. 15708
    • United States
    • Supreme Court of West Virginia
    • December 15, 1983
    ...61 L.Ed.2d 39 (1979). See also Simmons v. Dalsheim, 543 F.Supp. 729 (S.D.N.Y.1982), aff'd, 702 F.2d 423 (2d Cir.1983); Stump v. Bennett, 398 F.2d 111 (8th Cir.), cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968). [173 W.Va. 49] The instructions in the case before us, when rea......
  • Berrier v. Egeler, No. 77-1100
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 6, 1978
    ...34 L.Ed.2d 335 (1972) (exculpatory accomplice testimony); Dixon v. Hopper, 407 F.Supp. 58 (M.D.Ga.1976) (alibi defense); Stump v. Bennett, 398 F.2d 111 (8th Cir.), Cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968) (alibi defense); United States v. Ambrose, 483 F.2d 742 (6th C......
  • Request a trial to view additional results

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