Thomas v. Wyrick

• Decision Date: 20 August 1982
• Docket Number: No. 81-2031,81-2031
• Citation: 687 F.2d 235
• Parties: 11 Fed. R. Evid. Serv. 455 Charles Lee THOMAS, Appellant, v. Donald W. WYRICK and John Ashcroft, Attorney General of State of Missouri, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 235

687 F.2d 235

11 Fed. R. Evid. Serv. 455

Charles Lee THOMAS, Appellant, v. Donald W. WYRICK and John Ashcroft, Attorney General of State of Missouri, Appellees.

No. 81-2031.

United States Court of Appeals Eighth Circuit.

Submitted June 17, 1982.

Decided August 20, 1982.

Andrew F. Puzder, St. Louis, Mo., for appellant Charles Lee Thomas.

John Ashcroft, Atty. Gen., John C. Reed, Asst. Atty. Gen., Jefferson City, Mo., for appellees.

Before ROSS, Circuit Judge, and STEPHENSON and HENLEY, Senior Circuit Judges.

STEPHENSON, Senior Circuit Judge.

The central issue in this habeas corpus action is whether a trial court ruling which precluded the testimony of character witnesses for a criminal defendant as a sanction for noncompliance with a pretrial discovery order violated petitioner's rights under the compulsory process clause of the Sixth Amendment to the United States Constitution. The district court ¹ denied petitioner's requested habeas corpus relief under 28 U.S.C. § 2254, concluding that the exclusion of character witnesses did not substantially prejudice his case and did not violate his rights under the Sixth Amendment. We affirm the district court.

Petitioner Charles Lee Thomas, a Missouri state prisoner, was convicted on February 11, 1977, of murder in the second degree, for which he is currently serving a fifty-five year sentence. The murder incident, which occurred on the evening of March 19, 1976, was just the beginning of a long path of judicial proceedings which have occupied various courts for six years. On July 29, 1976, the day an information was filed charging Thomas with murder, the state also filed a discovery request pursuant to Missouri Supreme Court Rules 25.31, 25.34, 25.36 and 25.37, V.A.M.R. (now Rules 25.02, 25.05, 25.07 and 25.08), seeking the names and last known addresses of the persons the defendant intended to call as witnesses. The state filed a similar discovery request on November 4, 1976, and the trial court ordered that the defendant comply with the state's request within fifteen days. Not until January 3, 1977, the day before trial, did defendant's counsel verbally indicate that he might call character witnesses. The prosecutor objected to the defendant calling these witnesses because their identities had not previously been disclosed pursuant to the pretrial discovery order.

Defense counsel argued that he had not violated the court order to comply with the discovery request, since at the time of the order he had no intention of calling any witness other than defendant. "It is an eleventh hour decision," he said, and even then, he did not have a firm intention to call character witnesses. He advised the court that the testimony of the character witnesses "will be brief and simply deal with their experience with him (defendant) and in a limited relationship and will deal with their opinions as to his reliability and character and integrity and I don't see how the State is prejudiced by that."

The court determined that the Missouri discovery rule could not be interpreted as defendant suggested-it would reserve an intention to call witnesses, allowing counsel to call any witness he wished at the time of trial. The court stated that the only fair interpretation of the rule must be that the parties reveal all possible witnesses, and counsel may then elect to call or not call a particular witness at the time of trial. The court concluded that at that time, its ruling was that character witnesses could not testify, but that it would reserve a further ruling in case of any change in circumstances.

Defendant testified on his own behalf at trial and offered no further evidence. The issue of character witnesses never arose again during the trial. Defendant did not make an offer of proof stating what the witnesses would have testified to had they been allowed to appear.

Thomas was convicted of second-degree murder in the trial court, and the Missouri Court of Appeals affirmed. State v. Thomas, 579 S.W.2d 145 (Mo.App.1979). Petitioner sought federal habeas relief in the United States District Court for the Western District of Missouri. The district court, adopting the magistrate's report and recommendation, dismissed Thomas' petition without prejudice for failure to exhaust state court remedies. The district court concluded that Thomas had never presented to the state courts his claim that the exclusion of character witnesses violated his federal constitutional rights, but rather had relied upon an abuse of discretion theory in the state courts. The United States Court of Appeals for the Eighth Circuit affirmed, similarly concluding that federal collateral review was premature. Thomas v. Wyrick, 622 F.2d 411 (8th Cir. 1980). This court remanded to the district court, with a direction to hold the case on its docket pending a determination by the state courts of the federal constitutional claim.

Petitioner filed a state habeas corpus action in St. Charles County Circuit Court, pursuant to Missouri Supreme Court Rule 27.26, which was denied on February 20, 1981. On March 5, 1981, petitioner filed a notice of appeal to the Missouri Court of Appeals from the denial of the Rule 27.26 motion.

On March 12, 1981, petitioner filed a motion with the United States District Court for the Eastern District of Missouri to show cause why his federal habeas proceeding should not be reinstated and a hearing granted. Although a decision by the Missouri Court of Appeals was pending, the district court, noting that "a final determination of petitioner's federal post-conviction claim by the state courts will not occur soon," proceeded to deny petitioner's claim on the merits. Thomas v. Wyrick, 520 F.Supp. 139, 140 (E.D.Mo.1981). The trial court's order, it concluded, "did not result in a denial of either a fair trial or of due process." The lack of character witnesses, the court said, "did not result in any substantial prejudice to defendant's case." Id. at 143.

Petitioner appealed the district court decision to this court on August 18, 1981. In an unpublished opinion on January 26, 1982, the Missouri Court of Appeals denied petitioner's appeal from the state habeas corpus decision, stating that the issue of petitioner's denial of a fair trial had previously been considered by the court on appeal from the original trial. Finally, on March 19, 1982, the Missouri Court of Appeals denied petitioner's motion pursuant to Missouri Supreme Court Rule 83.02 for rehearing or transfer to the Missouri Supreme Court.

Petitioner now asks this court to directly address the issue of whether the trial court's ruling to exclude character witnesses violated petitioner's right to compulsory process under the Sixth Amendment. The particular facts of this case, however, make it unnecessary to decide the potential constitutional conflict. Although we have considered the serious constitutional issue presented, the procedural history of this case dictates our result. Specifically, we address four issues: (1) whether petitioner has exhausted his state court remedies; (2) whether the trial court's ruling was provisional or final; (3) the effect of petitioner's failure to make an offer of proof; and (4) the potential conflict between the exclusion sanction and the compulsory process clause.

I. EXHAUSTION OF STATE REMEDIES

As a matter of comity, federal courts have traditionally not considered claims in a habeas corpus petition until the states have had an opportunity to act. Ex Parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886). Recently, the Supreme Court has emphasized the necessity of exhausting state remedies before the federal courts will collaterally review a case. See Rose v. Lundy, --- U.S. ----, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). We hold that Thomas has exhausted his state court remedies. ² Petitioner's 83.02 motion for rehearing or transfer to the Missouri Supreme Court has been denied. The statute of limitations has run for petitioner to request a transfer to the Missouri Supreme Court pursuant to Mo.R.Civ.P. 83.03, which requires that such an application be made within fifteen days after the court of appeals denies the 83.02 motion. The only state remedy currently available to Thomas is an out-of-time motion for transfer pursuant to Mo.R.Civ.P. 84.08, which allows the court to suspend or modify its rules "when justice so requires."

In Powell v. Wyrick, 657 F.2d 222 (8th Cir. 1981), this court held that because of the discretionary nature of the 84.08 procedure, and the Missouri court's record of seldom granting such motions, such an untimely motion is not required to exhaust state remedies. We recently reaffirmed that holding in Adail v. Wyrick, 671 F.2d 1218 (8th Cir. 1982), in which petitioner had failed to file a motion for transfer under either Mo.R.Civ.P. 83.02 or 83.03 and the court decided that, due to the discretionary nature of the rule, petitioner was not required to file an untimely motion for transfer under 84.08. These cases govern our holding today that petitioner has now exhausted his state court remedies. See also Rodgers v. Wyrick, 621 F.2d 921 (8th Cir. 1980).

II. PROVISIONAL NATURE OF THE RULING

On the day before trial, petitioner's counsel informed the prosecutor that he might wish to call character witnesses on petitioner's behalf. On the morning the trial commenced, the prosecutor objected to the defendant calling these witnesses because their identities had not previously been disclosed pursuant to the pretrial discovery order. After brief argument by counsel concerning the relevant Missouri discovery rules, the following discussion occurred:

THE COURT: Furthermore I am going to take the matter as submitted now. I am going to reserve a ruling on this matter in the event that under some circumstance that isn't foreseen at this point it should be permissible to call these witnesses, but at this point the Court would be inclined to believe that this...