Turnbill v. Bordenkircher, 80-3054
Decision Date | 05 November 1980 |
Docket Number | No. 80-3054,80-3054 |
Citation | 634 F.2d 336 |
Parties | Leroy TURNBILL, Jr., Petitioner-Appellant, v. Donald E. BORDENKIRCHER, Warden, Respondent-Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
Frank W. Heft, Jr., Public Defender, Louisville, Ky. (Court-appointed), for petitioner-appellant.
Leroy Turnbill, Jr., pro se.
Guy C. Shearer, Robert Hensley, Asst. Attys. Gen., Frankfort, Ky., for respondent-appellee.
Before EDWARDS, Chief Judge, and LIVELY and ENGEL, Circuit Judges.
Turnbill appeals from a life sentence as a habitual offender entered after a jury trial in accordance with the law of Kentucky at that time. Turnbill was tried to a jury for breaking and entering a store and testimony was received from a court clerk to the effect that Turnbill had previously been convicted of robbery in 1957 and storehouse breaking in 1952. No admonition as to the use of this evidence was requested by defense counsel or given by the state trial judge. Subsequently, on Turnbill's own testimony before the jury, he was himself asked how many times he had been convicted of a felony, to which he responded that he had been "arrested" several times. At this point the state trial judge gave an admonition which did not correspond with defendant's testimony about arrest, but did say that testimony pertaining to conviction of a felony "should not be considered by you as evidence of the commission of any crime here, but is only permitted to be used as it goes to his credibility as a witness...."
In submitting this case to the jury, the court did not give instruction on this issue. Subsequently the jurors exhibited an interest in the matter in the following colloquy between the foreman of the jury and the court:
No objection or motion for a mistrial was made.
Since the date of this trial Kentucky has by statute provided for a bifurcated trial on a habitual criminal charge. But that clearly was not the situation at the time of this trial and this appeal must be judged under the standards of Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).
The District Judge dismissed plaintiff's habeas petition largely on the authority of Spencer v. Texas, supra. There is no doubt that Spencer held...
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...385 U.S. at 561-62; Murray v. Superintendent, Kentucky State Penitentiary, 651 F.2d 451, 453 (6th Cir.1981); Turnbill v. Bordenkircher, 634 F.2d 336, 337 (6th Cir.1980); Dawson v. Cowan, 531 F.2d 1374, 1376-77 (6th Cir.1976); Evans v. Cowan, 506 F.2d 1248, 1249 (6th Cir.1974). This court ha......
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U.S. v. Ford
...court so held in Evans v. Cowan, 506 F.2d 1248 (6th Cir.1974), Dawson v. Cowan, 531 F.2d 1374 (6th Cir.1976), and Turnbill v. Bordenkircher, 634 F.2d 336 (6th Cir.1980). Murray, 651 F.2d at 453. See also Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 3109 n. 8, 97 L.Ed.2d 618 ("We normally ......
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Murray v. Superintendent, Kentucky State Penitentiary
...court so held in Evans v. Cowan, 506 F.2d 1248 (6th Cir. 1974), Dawson v. Cowan, 531 F.2d 1374 (6th Cir. 1976), and Turnbill v. Bordenkircher, 634 F.2d 336 (6th Cir. 1980). In this case, the state trial judge was not asked to give a limiting instruction to the jury at the time the state int......