Webster v. Rees, 82-5625

• Decision Date: 20 March 1984
• Docket Number: No. 82-5625,82-5625
• Citation: 729 F.2d 1078
• Parties: Roy Allen WEBSTER, Petitioner-Appellant, v. John D. REES, Warden; Steven Beshear, Attorney General of the State of Kentucky, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1078

729 F.2d 1078

Roy Allen WEBSTER, Petitioner-Appellant, v. John D. REES, Warden; Steven Beshear, Attorney General of the State of Kentucky, Respondents-Appellees.

No. 82-5625.

United States Court of Appeals Sixth Circuit.

Argued Feb. 15, 1984.

Decided March 20, 1984.

Charles H. Cox, Jr., court-appointed, argued, Louisville, Ky., for petitioner-appellant.

David Armstrong, Atty. Gen. of Ky., Martin Glazer, J., Gerald Henry, argued, Asst. Attys. Gen., Frankfort, Ky., for respondents-appellees.

Before LIVELY, Chief Judge, WELLFORD, Circuit Judge, and BROWN, Senior Circuit Judge.

LIVELY, Chief Judge.

The petitioner appeals from the judgment of the district court denying his application for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Petitioner was convicted in a Kentucky court of rape and robbery and received consecutive sentences of twenty and ten years respectively. His conviction on both counts was affirmed by the Supreme Court of Kentucky. After exhausting state remedies as to the issues upon which he relies in this federal action, petitioner commenced the present habeas corpus proceedings.

Petitioner contends that his right to a fair trial was violated by the admission of evidence of other crimes and by the closing argument of the state prosecutor. After considering both claims the district court adopted the recommendation of a magistrate and dismissed the petition. Consideration of the first claim of error requires a brief recitation of the facts.

The prosecuting witness, a 19-year-old woman, testified that the petitioner accosted her in the late afternoon as she was preparing to go to work at a restaurant in Covington, Kentucky. She had just parked her car and was leaning over to lock the door on the passenger side when the petitioner, whom she had never seen before, got into the car with a gun and told her they were going for a ride. While holding the pistol inside his jacket with one hand, the petitioner drove the witness's car away from the restaurant. When the witness attempted to get out of the car the petitioner put the gun in her side. The witness said she knew nothing about guns and she was terribly frightened. The witness testified that after driving to a secluded spot the petitioner raped her, threatening her with the gun when she resisted. The petitioner also took money from her purse. The witness eventually escaped and reported what had happened to two men at a gasoline station. The petitioner was detained by the men until the police arrived.

While describing the petitioner's conduct after he had commandeered her car the witness testified that the petitioner told her he liked to do things for the thrill of it, that he and three others had robbed a club in Chicago and that somebody was after him. Counsel objected to this testimony and the trial court admitted it on the ground that the statement was made to the witness and it showed petitioner's state of mind. The Supreme Court of Kentucky held that the statement was admissible to show the state of fear which the petitioner induced in the witness. Her fear was a material issue in this trial for forcible rape and robbery where the petitioner claimed at trial that the witness consented to intercourse, that no force was used and that he had not robbed her.

The Supreme Court of Kentucky found the evidence of petitioner's statement to the witness admissible because it was relevant to issues in the case. We agree with this ruling. However, even if the evidence had been erroneously admitted this would not be a proper basis for granting habeas relief unless the admission of the evidence rendered the trial "so fundamentally unfair as to constitute a denial of federal rights." Logan v. Marshall, 680 F.2d 1121, 1123 (6th Cir.1983) (per curiam), quoting Gillihan v. Rodriguez, 551 F.2d 1182, 1193 (10th Cir.) cert. denied, 434 U.S. 845, 98 S.Ct. 148, 54 L.Ed.2d 111 (1977). Federal courts sitting in habeas corpus actions are not concerned with evidentiary rulings of state trial courts unless such rulings result in the denial of due process.

The second allegation of error relates to the closing argument of the prosecutor. It was a hard-hitting argument which characterized the petitioner as a liar. The prosecutor reminded the jury of the conflicting stories which the petitioner had told at various times since his arrest. In the course of the argument the prosecutor displayed a weapon which he said was a "Saturday Night Special." This was not the gun which the witness had described. The one displayed by the prosecutor had not been introduced or admitted as an exhibit and had not been referred to by any witness. On the other hand, the gun which was taken from the petitioner at his arrest had been admitted as an exhibit. It had a steel bar across the barrel and appeared to be inoperable.

The respondents argue that the purpose of this conduct of the prosecutor was to show the jury that the witness was justified in fearing for her life since the gun which the petitioner used resembled the "Saturday Night Special" which the prosecutor displayed. The Supreme Court of Kentucky called the closing argument "deplorable" and said it warranted criticism. The magistrate agreed. Yet both found that the argument was not sufficiently prejudicial to require a new trial. As both the Kentucky court and the...