On petition for writ of certiorari to the United States Court of
Appeals for the Sixth Circuit.
The petition for writ of certiorari is denied.
Justice REHNQUIST, with whom THE CHIEF JUSTICE and Justice
O'CONNOR join, dissenting from denial of certiorari.
Respondent Walker was indicted in Stark County, Ohio, for
murdering an off-duty policeman during a grocery store robbery in
July, 1972. Two accomplices, the wife of the victim, and a
disinterested eyewitness identified respondent as the perpetrator
of the murder. Respondent's defense was alibi; the records of the
jail in Cuyahoga County, Ohio, showed on their face that Walker was
incarcerated there between April 14 and August 1, 1972. If these
records were accurate, Walker could not have been in the grocery
store on July 22, 1972, when the murder took place. The accuracy of
these records was hotly contested at trial.
After a jury trial respondent was convicted of first-degree
murder. His conviction was affirmed by the Ohio Court of Appeals
and by the Supreme Court of Ohio, State v. Walker, 55 Ohio St-
Page 464 U.S.
951 , 952
.2d 208, 378 N.E.2d 1049 (1978), cert. denied, 441 U.S. 924
(1979). Respondent then sought federal habeas relief in the United
States District Court for the Northern District of Ohio, which
granted the writ on the ground that six evidentiary rulings of the
Ohio trial court concerning the scope of prosecutorial
cross-examination and rebuttal testimony denied respondent a fair
trial as guaranteed by the Fourteenth Amendment. The Court of
Appeals for the Sixth Circuit affirmed the judgment on the same
grounds. Walker v. Engle,
703 F.2d
959 (CA6 1983). I would grant certiorari to review this novel
holding that trial rulings on the scope of prosecutorial
cross-examination and rebuttal testimony are cognizable on federal
habeas. No case from this Court has ever held that they are, and
several of our cases strongly suggest that they are not. See Davis
v. Alaska,
415 U.S.
308, 317, 1111 (1974); Liscenba v. California,
314 U.S.
219, 227, 285 (1941); see also Donnelly v. DeChristoforo,
416 U.S. 637
(1974) (prosecutorial misconduct); Cupp v. Naughten,
414 U.S. 141 (1973) (
erroneous jury instruction).
Respondent has contended throughout that irrelevant and
prejudicial evidence was allowed before the jury. The Supreme Court
of Ohio rejected his contention with this language:
"Upon a review of the contested testimony, we find that it was
relevant, in that it tended to disprove the accuracy of the jail
records, which was a question in dispute in the instant cause. The
contested evidence went to the credibility of the various jail
records by demonstrating the overall inefficiency of the persons
and the system in which they were maintained and the general lack
of inmate supervision.
Moreover, upon an examination of the record, we find the
admission of certain of the testimony occurred without an objection
and that a great proportion of this testimony occurred during
cross- examination. The trial judge is posited with broad
discretion in controlling cross-examination, and the appellant has
the burden to show a patent abuse of discretion. We find, in the
instant cause, that the admission of this testimony was relevant to
the credibility of the jail records which support appellant's alibi
and was neither an abuse of discretion nor a resultant prejudicial
harm to appellant ." State v. Walker, 55 Ohio St.2d, at 214, 378
N.E.2d 1049 (footnote and citations omitted).
Page 464 U.S.
951 , 953
The District Court and the Court of Appeals, without suggesting
that there was anything peculiar about the Ohio rules regarding
relevancy or the trial court's discretion to control the
examination of witnesses, picked out six isolated instances in
which those courts thought that prosecutorial cross- or rebuttal
examination had been too broad, thereby infecting respondent's
entire trial with some sort of federal constitutional error:
(1) Defense witnesses were asked about the conviction of
"Major" Payne, a former warden of the jail, for theft of property
from the jail. Payne had not been warden at the time respondent was
allegedly incarcerated, however, and Payne's conviction occurred
after respondent's recorded period of detention. Disagreeing with
the Supreme Court of Ohio, the Court of Appeals held that testimony
relating to Payne's conviction for stealing evidence had "no
apparent connection to the issue whether a prisoner could leave the
jail and return undetected." Walker v. Engle, 703 F.2d, at 963
(emphasis in original).
(2) Jail commissary records were introduced to show that
Walker made numerous transactions during his confinement, including
one on the day of the crime. The prosecutor tried to undermine this
circumstantial evidence with testimony from jail deputies that
other inmates could have made purchases on Walker's commissary
account.
The state also called Frank Lancianese, an examiner for the
Office of the State Auditor. He testified that (1) an audit of the
commissary account between 1969 and 1975 revealed a $66,000
shortage; (2) the Sheriff's Department obstructed access to the
commissary records; and (3) an audit of jail vending machine
profits showed $9,000 unaccounted for by the Sheriff's Department.
The Court of Appeals determined that this rebuttal testimony was
not relevant to impeaching the accuracy of commissary records used
by respondent to support his alibi, saying that " the alleged
thefts did not affect the record of commissary transactions relied
on by Walker, but showed merely that commissary funds may have at
some time been misappropriated by Sheriff's Department personnel."
Id., at 964 (emphasis in original).
(3) In the words of the Court of Appeals, "[t]he
prosecution was permitted, without any basis in the record, to
insinuate [on cross- examination] that several defense witnesses
from the Sheriff's Department were being monitored and coached by
Tom Booth in fur-
Page 464 U.S.
951 , 954
therance of a Sheriff's Department coverup of improprieties."
Ibid.
(4) Respondent was first located in Chicago, Illinois,
and a prosecution rebuttal witness was permitted to testify that
Cuyahoga County authorities impeded [respondent's] return to Stark
County. The Court of Appeals rejected the state's claim of
relevancy, describing the testimony as "highly irrelevant and
prejudicial conjecture." Ibid.
(5) The state called as one of its witnesses John
Appling, a prisoner who had served as a "range boss" for the cell
block to which Walker was assigned. Appling took the stand,
identified himself, and refused to testify on the basis that his
testimony might incriminate him. The state then questioned other
witnesses concerning Appling, seeking, in the words of the Ohio
Supreme Court, "to test the recollection and credibility of the
witnesses. . . ." State v. Walker, 55 Ohio St.2d, at 218, 378
N.E.2d 1049. The District Court, in sharp contrast, thought that
this testimony " suggest[ed] to the jury that Appling's testimony
would have been helpful to the prosecution had he testified. . . ."
Walker v. Engle, C79-2132 (ND Ohio, Jan. 28, 1981), pet. A41. The
Court of Appeals agreed.
(6) The Court of Appeals also found objectionable the
state's use, over objection, of newspaper clippings to refresh the
recollection of defense witnesses during cross-examination
regarding the conditions at the Cuyahoga County jail. The clippings
referred to problems within the jail, and the Court of Appeals
thought the use of these clippings had an " inflammatory and
prejudicial effect on the jury." Walker v. Engle, 703 F. 2d, at
968.
The lower courts agreed that the evidence could sustain
respondent's conviction for the murder with which he was charged.
What the Court of Appeals did, in effect, was to select from this
massive evidence three examples of trial rulings respecting the
examination of defense witnesses, one ruling respecting a witness
who refused to testify, and two instances of the scope of rebuttal
testimony, and to conclude that their combined effect was to deny
respondent a "fair trial." In so doing, I think the Court of
Appeals went far beyond the permissible scope of federal habeas
review of a state conviction.
Whether we as trial judges in this case would have limited
cross- examination or rebuttal testimony more stringently than did
the judge who presided over the trial is scarcely material to the
inquiry on federal habeas corpus. The prosecution was trying to
Page 464 U.S.
951 , 955
impeach documentary evidence which gave a criminal defendant,
placed at the scene of the crime by several witnesses, an
apparently air-tight alibi- that he was confined in jail in another
county when the crime occurred. The manner in which these records
might be impeached, whether by showing potential inaccuracies in
the methods by which they were kept, or by showing other
deficiencies in the office that was responsible for keeping the
records, must under our system be left to the discretion of the
trial judge. In Liscenba v. California,
314 U.S. 219, 227-228,
285-86 (1941), this Court said:
"The Fourteenth Amendment leaves
California free to adopt a rule of relevance which the court below
holds was applied here in accordance with the state's law."
This Court has even gone so far as to overturn a trial judge's
ruling limiting cross-examination, stating that under the
Confrontation Clause of the United States Constitution
"Subject always to the broad
discretion of a trial judge to preclude repetitive and unduly
harassing interrogation, the cross-examiner is not only permitted
to delve into the witness' story to test the witness' perceptions
and memory, but the cross-examiner has traditionally been allowed
to impeach, i.e., discredit, the witness." Davis v. Alaska,
415 U.S.
308, 316, 1110.
By failing to heed the rulings in Liscenba and Davis, the Court
of Appeals impermissibly intruded federal habeas review into
essentially discretionary rulings of a state trial judge on a hotly
contested issue at trial. I would grant certiorari to review its
judgment.
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