United States ex rel. Stubbs v. Mancusi, 126

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: MOORE, FRIENDLY and ADAMS, Circuit
• Citation: 442 F.2d 561
• Parties: UNITED STATES of America ex rel. William C. STUBBS, Petitioner-Appellant, v. Vincent R. MANCUSI, Warden of Attica Correctional Facility, Respondent-Appellee.
• Docket Number: No. 126,Docket 34449.,126
• Decision Date: 19 April 1971

442 F.2d 561 (1971)

UNITED STATES of America ex rel. William C. STUBBS, Petitioner-Appellant,
v.
Vincent R. MANCUSI, Warden of Attica Correctional Facility, Respondent-Appellee.

No. 126, Docket 34449.

United States Court of Appeals, Second Circuit.

Argued October 26, 1970.

Decided April 19, 1971.

442 F.2d 562

Bruce K. Carpenter, Dunkirk, N. Y. (Woodin & Carpenter, Dunkirk, N. Y., of counsel), for petitioner-appellant.

Maria L. Marcus, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, and Samuel Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for respondent-appellee.

Before MOORE, FRIENDLY and ADAMS,^* Circuit Judges.

ADAMS, Circuit Judge:

Relator Stubbs was convicted in Monroe County, New York in 1966 for first degree assault and possession of a firearm. The County Court considered a prior conviction of murder obtained against Stubbs in Tennessee, found him to be a second felony offender, and sentenced him to consecutive terms of imprisonment totaling thirty-two to thirty-four years.¹ Stubbs here challenges his sentence, alleging that his prior felony conviction in Tennessee was constitutionally invalid. The Honorable Harold P. Burke, District Judge of the District Court for the Western District of New York, denied Stubbs' application for a writ of habeas corpus, and relator appealed.

Stubbs was first convicted of a vicious murder in Tennessee in 1954. This conviction was vacated in 1964 when the Honorable William E. Miller, United States District Court for the Middle District of Tennessee, found Stubbs to have been denied, because of late appointment, the effective assistance of counsel. Stubbs v. Bomar, Civil Action 3585 (M.D.Tenn., filed January 6, 1964). At retrial, the prosecution's primary witness did not appear, but his testimony from the first trial was read over defense objections, and Stubbs was convicted. This conviction was upheld by the Supreme Court of Tennessee. Stubbs v. State, 216 Tenn. 567, 393 S. W.2d 150 (1965).

The critical issue before us is whether relator's 1964 Tennessee conviction was obtained in violation of his right — under the Sixth Amendment to the Constitution — to be confronted with the witnesses against him, and thus was an improper predicate for increased punishment.²

The facts underlying the Tennessee conviction are as follows: Mr. and Mrs. Holm were driving through Tennessee on their way from Texas to Rhode Island for an eventual journey to Sweden. Stubbs asked Mr. and Mrs. Holm at a roadside park for a ride, but was refused. He then forced them at gun-point to permit him to drive their car while the Holms rode in the back seat. Stubbs claimed that when they were near Bristol, Tennessee, he was suddenly struck on the head and he heard a loud bang, the car hit a tree and Stubbs then fled. The police were called to investigate the wrecked car, and they found Mrs. Holm dead by a gunshot wound, and Mr. Holm shot twice in the face. Stubbs was soon apprehended in a police road-block. From his hospital bed, Mr. Holm identified Stubbs as the man who shot him and his wife. Three days before his trial, three attorneys were appointed to defend Stubbs, and they requested and were refused a continuance to prepare the defense. At trial, Mr.

442 F.2d 563

Holm was the state's primary witness, and Stubbs was convicted

By the time of the 1964 retrial, Mr. Holm had become a permanent resident of Sweden, but had not relinquished his American citizenship. No effort was made by the state to obtain Holm's attendance at this trial. Instead, Holm's son was brought from Texas to testify that his father was presently residing in Sweden whereupon Holm's prior testimony was admitted over objection.³ The propriety of the admission of that evidence, in light of Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) and California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), is here in question.⁴

As noted by the Supreme Court in Green, "the particular vice which gave impetus to the Confrontation Clause was the practice of trying defendants on `evidence' which consisted solely of ex parte affidavits or depositions secured by the examining magistrates, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact." 399 U.S. at 156, 90 S.Ct. at 1934. A traditional exception to the confrontation requirement has been the introduction of testimony of a witness who is now unavailable, but who previously testified subject to cross-examination at judicial proceedings against the same defendant. E. g., Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895). While the scope of the Confrontation Clause is not coextensive with the rules of hearsay and their exceptions,<sup>5</sup> "necessity"<sup>6</sup> is a factor common to both that may justify the use of prior recorded testimony in limited instances of genuine unavailability. The test for such use is whether "the prosecutional authorities have made a good-faith effort to obtain the witness' presence at trial." Barber v. Page, supra 390 U.S. at 725, 88 S.Ct. at 1322. No such effort was made here, and Holm's testimony was improperly admitted into evidence. Where there is no showing that a witness beyond the effective reach of a court's subpoena will refuse to return voluntarily to testify if requested, the prosecution may not introduce prior testimony without demonstrating a reasonable effort to secure his presence. Cf. Gov't of Virgin Islands v. Aquino, 378 F.2d 540 (3rd Cir. 1967); Owens v. Eyman, 434 F.2d 1062 (9th Cir. 1970). Absence from the continental United States is not per se a sufficient reason to broaden the exception to the Confrontation Clause allowing the admission of prior testimony of a presently unavailable witness. Although there is a much greater chance that it will not be possible to bring before the court a witness residing abroad, "`the possibility of a refusal is not the equivalent of asking and receiving a rebuff.'" Barber v. Page, supra, 390 U.S. at 724, 88 S.Ct. at 1322, quoting with approval Judge Aldrich's dissent in the Court of Appeals, 381 F.2d 479, 481 (10th Cir. 1967).

New York urges that even if Holm's testimony was erroneously admitted in the 1964 trial, such error was harmless beyond a reasonable doubt within the meaning of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).⁷ Relator answers that Judge Miller found Stubbs did not have effective assistance...