U.S. ex rel. Swimley v. Nesbitt, 79-1206

• Decision Date: 02 November 1979
• Docket Number: No. 79-1206,79-1206
• Citation: 608 F.2d 1130
• Parties: UNITED STATES of America ex rel. Marlene SWIMLEY, Petitioner-Appellant, v. Charlotte NESBITT, Warden of Dwight Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1130

608 F.2d 1130

UNITED STATES of America ex rel. Marlene SWIMLEY, Petitioner-Appellant, v. Charlotte NESBITT, Warden of Dwight Correctional Center Respondent-Appellee.

No. 79-1206.

United States Court of Appeals Seventh Circuit.

Argued Oct. 2, 1979.

Decided Nov. 2, 1979.

Louis Carbonaro, Chicago, Ill., for petitioner-appellant.

Thomas E. Holum, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before CUMMINGS, PELL and BAUER, Circuit Judges.

BAUER, Circuit Judge.

The petitioner, Marlene Swimley, was convicted of solicitation to commit murder in violation of Ill.Rev.Stat. ch. 38, § 8-1 by a Cook County jury. Her conviction was affirmed by the Illinois Appellate Court. People v. Swimley, 57 Ill.App.3d 116, 14 Ill.Dec. 608, 372 N.E.2d 887, Cert. denied, 439 U.S. 911, 99 S.Ct. 281, 58 L.Ed.2d 257 (1978). The petitioner then sought a writ of habeas corpus in federal district court. From the denial of her petition, she appeals. We affirm.

The evidence at trial showed that the petitioner requested an undercover investigator, Joseph Saladino, to murder her husband. The jury heard the testimony of Mr. Saladino as well as tape recordings of the encounter between him and the petitioner. ¹ Illinois law requires that to be guilty of solicitation, a person must request or encourage another to commit a crime with the intent that the crime be committed. The jury was so instructed. See Illinois Pattern Jury Instruction Criminal 6.01 (1968) (hereinafter cited as IPI-Criminal). In order to establish that the petitioner did intend to bring about her husband's murder, the state, in addition to presenting the testimony of the investigator and the tapes, called as witnesses Kevin Senne and John DeSpain. Both young men testified to plans they had made with the petitioner to find a "hit man" to take care of her husband. Senne admitted on the stand that he had received immunity from prosecution and that he would not have testified otherwise. Whether DeSpain had received immunity as well is unclear, but cross-examination revealed that he had received benefits from the state in return for his testimony. The petitioner testified in her own defense, denied the stories of Senne and DeSpain, and attempted to put an innocent construction on her conversation with investigator Saladino.

Petitioner tendered proposed jury instructions on the testimony of immunized witnesses and accomplices. The instructions tendered followed verbatim those suggested in 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 12.02 ² and § 12.04 ³ (2d ed. 1970). The trial judge, however, refused to give the tendered instructions. Nor did the court instruct the jury specifically on the testimony of accomplices and the care with which their testimony should be considered, although the Illinois Pattern Jury Instructions contain an instruction on the subject. ⁴ Instead the trial judge gave the jury an instruction on the evaluation of the credibility of witnesses in general terms. ⁵ The jury returned a verdict of guilty. Petitioner received a sentence of three to nine years imprisonment. The Illinois appellate court held that the trial court's refusal to give the instructions requested was not error. 57 Ill.App.3d at 130-31, 372 N.E.2d at 897-98, 14 Ill.Dec. at 618-619.

The sole issue before the federal district court and before this court is whether the failure of the state trial judge to give some kind of cautionary instruction on the testimony of accomplices or immunized witnesses ⁶ violated the petitioner's due process right to a fair trial. A federal court in a habeas corpus action is limited in its search for error to those of constitutional magnitude. 28 U.S.C. § 2254.

The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Cupp v. Naughten, 414 U.S. (141), at 147 (94 S.Ct. 396, 38 L.Ed.2d 368), not merely whether ". . . the instruction is undesirable, erroneous, or even 'universally condemned,' " Id., at 146, (94 S.Ct. 396).

Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-1737, 52 L.Ed.2d 203 (1977). In those cases in which the Supreme Court has reviewed the instructions given in state criminal trials, it has confined its inquiry to determining whether the jury was properly instructed on the government's burden of proving every element of the crime charged beyond a reasonable doubt, See Sandstrom v. Montana, --- U.S. ----, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), or another " 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,' " Id. at 149-50, 94 S.Ct. at 402 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). See, e. g., Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 1935, 56 L.Ed.2d 468 (1978) (jury should be instructed on the presumption of innocence to insure that it bases its verdict "solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial"). Compare Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979) (Taylor does not create a per se constitutional rule; whether failure to instruct on presumption of innocence violates constitutional right to a fair trial depends upon the totality of the circumstances). Moreover, one convicted of a crime in state court has a particularly heavy burden of establishing a constitutional violation where, as here, she complains not that the state court gave an erroneous instruction, but that it omitted to give a permissible instruction. Henderson v. Kibbe, 431 U.S. at 155, 97 S.Ct. 1730.

The petitioner, relying on a number of federal appellate court decisions reviewing federal criminal convictions, contends that cautionary instructions on accomplices and immunized witnesses have become so well-established as to be constitutionally required in appropriate cases in both state and federal criminal trials. At least one federal court of appeals has rejected this argument, Grieco v. Meachum, 533 F.2d 713 (1st Cir.), Cert. denied, 429 U.S. 858, 97 S.Ct. 158, 50 L.Ed.2d 135 (1976), ⁷ and a review of the federal decisions reveals that they are properly understood as exercises of the federal appellate courts' supervisory power over proceedings in trial courts, not decisions vindicating constitutional rights. See generally 17 A.L.R. Fed. 249 (1973).

The justification for cautionary instructions on particular types of witnesses is easy to understand.

The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are "dirty business" may raise serious questions of credibility. To the extent that they do, a defendant is entitled to broad latitude to probe credibility by cross-examination and to have the issues submitted to the jury with careful instructions.

On Lee v. United States, 343 U.S. 747, 757, 72 S.Ct. 967, 973-974, 96 L.Ed. 1270 (1952). When the government calls "the accused accomplice . . . to testify against the defendant(,) (c)ommon sense would suggest that he often has (an) interest in lying in favor of the prosecution . . . ." Washington v. Texas, 388 U.S. 14, 22, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967). Thus, in most cases, accomplice instructions "represent no more than a commonsense recognition that an accomplice may have a special interest in testifying, thus casting doubt upon his veracity." Cool v. United States, 409 U.S. 100, 103, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972).

Even though "(a)ccomplice instructions have long been in use and have been repeatedly approved," Id., the federal courts of appeals have not reached unanimity on the circumstances in which the trial judge should or must give such an instruction and on when the failure to do so will warrant a reversal. Judge Learned Hand in widely quoted dictum once remarked:

The warning is never an absolute necessity. It is usually desirable to give it; in close cases it may turn the scale; but it is at most merely a part of the general conduct of the trial, over which the judge's powers are discretionary, like his control over cross-examination, or his comments on the evidence. If he thinks it unnecessary at least when, as here, the guilt is plain he may properly refuse to give it.

United States v. Becker, 62 F.2d 1007, 1009 (2d Cir. 1933). See also United States v. Bucur, 194 F.2d 297, 305 (7th Cir. 1952) ("Although such an instruction is 'better practice,' it is not error to refuse to give it"). Although it is doubtful that such a broad statement accurately reflects current federal practice, ⁸ it illustrates that cautionary instructions such as those requested by the petitioner cannot be regarded as "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934).

The petitioner has not briefed the status of cautionary instructions on the testimony of accomplices and immunized witnesses in the state courts, but it is doubtful that such instructions are universally or widely required. See Grieco v. Meachum, 533 F.2d 713, 720 (1st Cir.), Cert. denied, 429 U.S. 858, 97 S.Ct. 158, 50 L.Ed.2d 135 (1976) (Massachusetts does not require accomplice instruction). The Illinois Pattern Jury Instructions for criminal cases do not contain an immunized witness instruction and the committee note to the accomplice...