Wycoff v. Nix

• Decision Date: 18 April 1989
• Docket Number: No. 88-1324SI,88-1324SI
• Parties: Steven R. WYCOFF, Appellant, v. Crispus NIX, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

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869 F.2d 1111

Steven R. WYCOFF, Appellant, v. Crispus NIX, Warden, Appellee.

No. 88-1324SI.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 18, 1988.

Decided March 13, 1989.

Rehearing Denied April 18, 1989.

James P. Cleary, Phoenix, Ariz., for appellant.

Thomas D. McGrane, Asst. Atty. Gen., Des Moines, Iowa, for appellee.

Before LAY, Chief Judge, JOHN R. GIBSON, Circuit Judge, and NICHOL, ^* Senior District Judge.

NICHOL, Senior District Judge.

Steven R. Wycoff, an Iowa state prisoner serving a life sentence for first degree murder of a fellow inmate, appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. Wycoff contends that he is entitled to relief because of prosecutorial misconduct, denial of the right to compulsory process in violation of the 6th amendment and ineffective assistance of counsel. We affirm.

The procedural history in this case is lengthy. It begins with Wycoff's direct appeal from the trial court decision, where the Iowa Supreme Court affirmed the conviction. State v. Wycoff, 255 N.W.2d 116 (Ia.1977), Hutcheson and Liles, Wycoff's trial attorneys, also argued the direct appeal. After Wycoff obtained new counsel a post-conviction court convened in 1983 to hear the petitioner's habeas claims. The post-conviction court completed its hearings in May of 1983 after painstakingly addressing twenty-four issues and entered its unpublished order denying relief on October 31, 1983. Wycoff appealed the post-conviction court's decision to the Iowa Supreme Court, who transferred the appeal to The factual background of this case is sufficiently set forth in the Iowa Supreme Court decision. Id. We will discuss as necessary facts relevant to the arguments petitioner raises on this appeal. Specifically, the petitioner argues the following items entitle him to habeas relief:

                the Iowa Court of Appeals.  In an unpublished opinion the Iowa Court of Appeals reversed the post-conviction court.  The Iowa Supreme Court reviewed the Court of Appeals decision and in an exhaustive review reversed the Iowa Court of Appeals denying petitioner habeas relief.  Wycoff v. State, 382 N.W.2d 462 (Ia.1986).  Wycoff then petitioned the U.S. District Court of Iowa for habeas relief but was denied. 1   Wycoff now appeals to this court
                

(1) the prosecutor improperly cross-examined defense witness Cain, an inmate, without factual predicate and made excuse for the missing predicate in closing argument;

(2) the prosecutor's examination of the victim's wife was designed to inflame and prejudice the jury.

(3) the prosecutor examined two prosecution witnesses regarding threats without factual predicate;

(4) the prosecutor used false and misleading testimony in an in-court test regarding the presence of blood on a jacket;

(5) the court and counsel by stipulation improperly limited defense witness Tressler's testimony in return for the availability of Tressler to Wycoff for trial;

(6) his counsel acted unprofessionally during readback of testimony and failed to object to the court's admonishment.

(7) his counsel failed to object at trial and failed to appeal as to other prosecutorial misconduct;

(8) his counsel failed to interview and call witnesses with information favorable to his defense;

(9) his counsel failed to request an alibi instruction; and

(10) Wycoff's counsel labored under a conflict of interest in their concurrent representation of a possible prosecution witness and did not inform the petitioner or the court.

Wycoff, 382 N.W.2d at 465. They will be taken up in order, together with the relevant facts, under the appropriate standard of review.

PROSECUTORIAL MISCONDUCT

The petitioner's specific allegations of prosecutorial misconduct are detailed in items one through four in the list from above. It is a fundamental principle that federal courts may intervene in state judicial processes "only to correct wrongs of a constitutional dimension." Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983) (per curiam); Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982); Davis v. Wyrick, 766 F.2d 1197, 1203 (8th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1209, 89 L.Ed.2d 322 (1986). Our review of prosecutorial misconduct claims is limited to determining whether the prosecutor's actions were so egregious that it fatally infected the entire trial, rendering it fundamentally unfair and denying [petitioner] due process." Crespo v. Armontrout, 818 F.2d 684, 687 (8th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 492, 98 L.Ed.2d 490 (1987); Hamilton v. Nix, 809 F.2d 463, 470 (8th Cir.1987) (en banc), cert. denied, --- U.S. ----, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987); Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 2472, 91 L.Ed.2d 144 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 639, 94 S.Ct. 1868, 1869, 40 L.Ed.2d 431 (1974). Our review is further constricted when the state courts pass judgment on issues of fact. 28 U.S.C. Sec. 2254(d) requires the federal courts in habeas proceedings to accord a presumption of correctness to state court findings of fact. Sumner v. Mata, 455 U.S. 591, 592, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1982). Thus, our scope of review is a narrow one. We hold, based on the findings of fact made by the state court concerning prosecutorial misconduct, that the prosecutor's actions were not so egregious as to arise to the level of a constitutional deprivation.

The state court found no prosecutorial misconduct. Instead, the state court found the prosecutor acted in good faith, had adequate factual basis to cross-examine witnesses, did not deliberately attempt to mislead the jury and did not misuse evidence. Wycoff, 382 N.W.2d at 467, 468. These findings are entitled to a presumption of correctness under Sec. 2254(d) unless one of the seven conditions specifically set forth in Sec. 2254(d) is found to exist. Sumner, 455 U.S. at 592, 102 S.Ct. at 1304. We find none of those seven conditions exist. Moreover, the state court findings are fairly supported by the record. Id. Our canvass of the record, detailed below, convinces us the defendant has failed his burden of showing the factual determinations by the state court are erroneous or that absent the prosecutor's actions there is a reasonable probability the jury would have returned a different verdict. Id.; Hamilton, 809 F.2d at 470.

1. Cross-examination of Cain and argument on rebuttal. Wycoff asserts misconduct in the prosecutor's cross-examination of defense witness Cain regarding an alleged conversation Cain had with a prison guard (Bowen) about the stabbing. The prosecutor implied Cain had a conversation with Bowen. Cain denied he had any conversation with Bowen. Petitioner argues that the prosecutor cross-examined Cain without factual predicate--e.g. he had no basis to believe that such a conversation took place but nonetheless asked questions about it anyway. The record reveals otherwise.

The state court found the prosecutor based his cross-examination of Cain on a BCI report summarizing a conversation between Cain and Bowen as told by Bowen to a BCI agent. Following the cross-examination of Cain in the criminal case, the prosecutor subpoenaed Bowen to testify. When Bowen arrived at the courthouse he told the prosecutor he did not have a conversation with Cain regarding the stabbing. The prosecutor did not call Bowen as a witness, nor did he otherwise impeach Cain's denial of the alleged conversation. Thus, Cain's undenied, unimpeached testimony was that he did not make such a statement to Bowen. We agree with the state court that there is nothing in the record necessitating a correction and no error of constitutional measure was committed. See Wycoff, 382 NW.2d at 466.

The other allegation of misconduct regarding Cain's questioning concerns the prosecutor's rebuttal comments during closing argument. Petitioner's defense counsel, in his closing, pointed out the prosecutor's failure to offer proof of Cain's conversation with the guard. The prosecutor responded in rebuttal that Bowen was not a guard, but a guard under suspension. The prosecutor believed this distinction important because a guard would likely have every reason to cooperate and testify for the state. Petitioner charges the prosecutor with misconduct by misleading the jury on the matter of the guard's employment status.

The state court found no misconduct by the prosecutor in his closing arguments. The state court found the prosecutor's comments were an extemporaneous response to defense counsel's arguments, and could not have been a deliberate attempt to mislead. Any implication that Bowen's testimony would contradict Cain's was inadvertent. Wycoff, 382 N.W.2d at 468. Nothing in the record detracts from these findings.

We find no error of constitutional dimension in the prosector's closing remarks. Defense counsel's argument invited a response by the prosecutor and the prosecutor has a right to reply to an argument raised by the defense. Sanchez v. Heggie, 531 F.2d 964, 967 (10th Cir.1976), cert. denied, 429 U.S. 849, 97 S.Ct. 135, 50 L.Ed.2d 122 (1976). If the prosecutor erred in his comments, the error falls on the side of "ordinary trial error," not the egregious sort of conduct that has resulted in relief from a federal court. Compare Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1973) (the prosecutor withheld evidence relevant to the extent of defendant's participation in the crime); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967) (undershorts covered with paint, which the prosecutor knew in advance of trial, were misrepresented as being covered with blood repeatedly throughout the trial). Moreover, the prosecutor's remark, taken in context with the lengthy exhortation of both closing arguments, was not such that it tended to diminish the jury's view of the trial. Hayes v. Lockhart, 852 F.2d 339 (8th...