Tuggle v. Seabold

Decision Date24 November 1986
Docket NumberNo. 86-5172,86-5172
Citation806 F.2d 87
PartiesJames Malcolm TUGGLE, Jr., Petitioner-Appellee, v. William SEABOLD, Warden, and David L. Armstrong, Attorney General, Respondents-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

C. McGehee Isaacs (argued), Asst. Public Advocate, Frankfort, Ky., for petitioner-appellee.

David L. Armstrong, Atty. Gen. of Kentucky, Frankfort, Ky., Gerald Henry (argued), for respondents-appellants.

Before LIVELY, Chief Judge, MERRITT, Circuit Judge, TIMBERS, Senior Circuit Judge. *

LIVELY, Chief Judge.

The district court granted a writ of habeas corpus to the petitioner, Tuggle, and the respondents appeal. Accepting the report and recommendations of the magistrate, the district judge concluded that the proceedings under which Tuggle was convicted of knowingly receiving stolen property denied Tuggle his constitutional right to due process of law. The due process violation consisted of questioning Tuggle at trial about his postarrest silence. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

I.

Sometime during the night of January 1-2, 1982 Leonard Burke and his fiancee were shot to death in Burke's home in Hopkinsville, Kentucky, and the house was set on fire. Burke was a professional gambler who wore expensive jewelry and carried large sums of cash. The jewelry was missing when the bodies were discovered and only $500-600 was found in the house. Suspicion seems to have settled on Tuggle early in the investigation. Tuggle was a casual laborer who had a felony record for burglary. He had worked as "door keeper" at Burke's gambling hall above a pool room for approximately one month, but was laid off or discharged by Burke on December 30, 1981.

The police could not locate Tuggle early in the day on January 2, 1982. However, late that afternoon Tuggle went to the Hopkinsville police station and was interviewed. He was not taken into custody at that time. Tuggle signed a consent for the police to search his automobile, but refused to tell the police where he had been the previous night. The police interrogated Tuggle several times later in January, but he continued to refuse to discuss his whereabouts on the night of the crimes.

On February 19, 1982, after some previous arrangements through an informer named Doug DeRose, Tuggle delivered some of Burke's jewelry to an undercover police officer in exchange for $10,000. This transaction was monitored and tape recorded by other officers who immediately moved in and arrested Tuggle. One of the officers testified that he told Tuggle that he was under arrest and advised him of his "rights." Tuggle was indicted on two charges of murder, two charges of burglary and one charge of arson. In a subsequent indictment he was charged with knowingly receiving stolen property. All charges were tried together.

Tuggle elected to testify at trial. On direct examination Tuggle's attorney asked about his trip to the police station on January 2. Tuggle testified that he went to the police station because his father and a friend told him the police were looking for him. He consented to a search of his car, but testified that when questioned concerning his whereabouts the night before, "I didn't have anything to say to them." Tuggle explained that he was still on parole from his previous convictions and that he had violated conditions of parole by going to Tennessee the night of January 1-2. When Tuggle's attorney asked about other interrogations prior to his arrest, Tuggle stated that he never told the police, or anyone else where he had been, because to have told would have revealed a parole violation, and he had no concrete alibi.

Tuggle testified extensively about his contacts with DeRose in the days immediately preceding his arrest. He said that DeRose had Burke's jewelry in his possession and frightened Tuggle into helping him dispose of it. Tuggle testified that when DeRose showed him the jewelry on February 17 he recognized it as Burke's. He admitted handling the jewelry at the informer's home, but denied having it in his possession between February 17th and 19th. DeRose testified that Tuggle had the jewelry in his possession on February 17 when he showed it to DeRose and boasted of its value. Having already agreed to cooperate with the police, DeRose made the proposal to sell the jewelry to the undercover officer posing as his uncle. Tuggle's version of the events was that DeRose kept the jewelry until the night of February 19 when he placed it in an automobile and directed Tuggle where to find it for delivery to his "uncle." Tuggle's attorney did not ask him on direct examination whether he made any statement at the time of his arrest or thereafter.

On cross-examination the prosecutor asked Tuggle why he did not tell the police, or anyone else, where he had been on the night of the murders. Tuggle gave the same answer he had given on direct examination. The prosecutor then started questioning Tuggle about the events of February 17-19. Defense counsel objected reminding the court that Tuggle was arrested on February 19. The trial court ruled that the questions still related to Tuggle's prearrest silence and overruled the objection. This ruling was correct since no questions had been asked at that point which related to the period after Tuggle's arrest. The prosecutor then asked, referring to Tuggle's version of the events leading up to his arrest, "In the past five months that you have been in custody, you have not told this to any law enforcement official or any member of the general public?" Without objection, Tuggle answered that he had told his attorney, but not any law enforcement official. Tuggle was also asked why he had not just explained to the police at the time of his arrest "what had taken place." Again, there was no objection, and Tuggle replied that he was intoxicated, upset and "in shock" immediately after his arrest.

In closing argument Tuggle's attorney talked about his client's prearrest silence and reminded the jury of Tuggle's reasons for not revealing his whereabouts. The attorney did not mention Tuggle's postarrest silence. However, in arguing for the Commonwealth, the prosecutor did comment. Referring to Tuggle's struggles with the arresting officers while being taken to jail, the prosecutor asked:

Did that sound like the actions or the reactions of a man who had been set up, who was innocent, or does it sound like the reactions of a man who is guilty, who thought he'd gotten away with something and realized he'd gotten caught and got mad? Did he tell the police right then what had gone on?

II.

The jury acquitted Tuggle of all the charges except that of knowingly receiving stolen property and fixed his punishment at five years in prison. He was also found, in a bifurcated hearing, to be a persistent felony offender and this resulted in an enhanced sentence. The Supreme Court of Kentucky affirmed the conviction in an unpublished opinion, and this habeas corpus action followed.

On appeal from the order granting habeas relief the warden and Attorney General (the Commonwealth) make several procedural arguments in addition to the contention that the district court erred in its application of Doyle v. Ohio to the facts of this case.

The Commonwealth argues, first, that Tuggle failed to exhaust his available state remedies, a requirement of 28 U.S.C. Sec. 2254(b) for granting a writ of habeas corpus to a person in state custody. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Tuggle filed a petition for rehearing in the Supreme Court of Kentucky in which he reargued only one of five issues contained in his brief on direct appeal. The finding that there had been no Doyle violation was not discussed. The Commonwealth asserts that Tuggle thereby abandoned the claim that he was denied due process when questioned about his postarrest silence, and that he was barred from raising that issue in these habeas corpus proceedings.

The second issue raised by the Commonwealth on appeal is that habeas relief may not be granted because the Supreme Court of Kentucky decided Tuggle's appeal on independent and adequate state procedural grounds. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Tuggle's retained counsel objected to the prosecutor's questions to Tuggle about his prearrest silence concerning his whereabouts on January 1-2, but did not object to the questions about his failure, following his arrest, to tell his version of how Burke's jewelry came into his possession. Kentucky has a contemporaneous objection rule. Kentucky Rules of Criminal Procedure (RCr) 9.22; Turner v. Commonwealth, 460 S.W.2d 345 (Ky.1970).

The third procedural issue rests on the Commonwealth's contention that the district court failed to consider the matter de novo following objections to the magistrate's report, in that the district court did not "articulate" specific responses to the objections.

Finally, the Commonwealth maintains that the holding of the district court on the substantive Doyle claim is erroneous, or, in the alternative, that any error in this regard was harmless.

III.

We reject each of the procedural arguments of the Commonwealth.

A.

There is no requirement that a litigant petition for rehearing after an appellate court issues a final decision. The rule governing petitions for rehearing in the Supreme Court and Court of Appeals of Kentucky, Civil Rule (CR) 76.32(1)(a), provides that "[a] party adversely affected by an opinion of the Supreme Court or the Court of Appeals in an appealed case may petition the Court for (i) a rehearing...." (Emphasis added). The Supreme Court of Kentucky has rejected an argument that is analogous to the one made by the Commonwealth. In disposing of an argument that a person convicted in Kentucky must seek discretionary review in the Supreme Court or the Court of Appeals from a trial court's...

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