Harry J. Manning, Petitioner-appellant, v. Jimmy H. Rose, Warden, Tennessee State Penitentiary,respondent-appellee, 507 F.2d 889 (6th Cir. 1974)

At petitioner-appellant's ('appellant') state court trial on charges of the armed robbery on November 8, 1971, of one Robert Sheehan, the trial judge permitted, over defense objections,¹  one Charles Heathcott to testify that appellant had robbed him on November 5, 1971, four to five blocks from where Mr. Sheehan was robbed. The trial judge admitted evidence of the Heathcott robbery for the limited purpose of possibly identifying the robber of Mr. Sheehan.²  Mr. Heathcott testified that, after he had told his robber that he had no money, his robber told him, 'Don't lie to me or I'll blow a hole through you.' Mr. Sheehan testified that one of his two robbers told him, 'Do exactly as I tell you or I'll blow a hole in you.' Appellant asserted the alibi defense that he was shooting pool at the time of the Sheehan robbery.

Appellant was convicted and sentenced to ninety-nine (99) years' imprisonment. The state court of criminal appeals rejected appellant's claim that the trial court erred in admitting evidence of the Heathcott robbery,³  but reversed appellant's conviction because the trial judge failed to instruct the jury concerning alibi. The state supreme court, however, reinstated appellant's conviction because the trial judge has no duty to give an unrequested alibi instruction where defendant fails to 'fairly raise' an alibi defense.⁴ 

Appellant thereafter filed, pro se, in federal district court the instant petition for writ of habeas corpus, claiming that he should be released because evidence of the Heathcott robbery was admitted⁵  and because no alibi instruction was given. The district court, on November 27, 1973, denied appellant's petition in finding that appellant's claims were 'entirely matters of State law, and do not involve the violation of any federally guaranteed right.' We affirm.

Though Anglo-American jurisprudence generally precludes admitting evidence of other crimes, Note, Other Crimes Evidence at Trial: of Balancing and Other Matters, 70 Yale L.J. 763 (1961), evidence of other crimes may be admitted to prove scheme or plan, motive, knowledge, intent, absence of mistake or accident, or identity. Turner v. United States, 426 F.2d 480, 483-484 (6th Cir. 1970); United States v. Neal, 344 F.2d 254, 255 (6th Cir. 1965) (dictum); McCormick, Evidence 190 (1972); accord, Proposed Fed.Rule of Evidence 404(b); Uniform Rule of Evidence 55. American jurisdictions nearly universally have rules somewhat similar to the Tennessee common law rule allowing 'clear and convincing' evidence of other crimes to establish identity.⁶  Of course,

'that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice 'offends some principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental." Leland v. Oregon, 343 U.S. 790, 798, 72 S. Ct. 1002, 1007, 96 L. Ed. 1302 (1952), citing Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S. Ct. 330, 78 L. Ed. 674 (1934).

Accord, McKeiver v. Pennsylvania, 403 U.S. 528, 548, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971).

The improper admission under Tennessee law of evidence of the Heathcott robbery, of course, is immaterial on federal habeas corpus.⁷  Similarly, even the conceded propriety under Tennessee law of admitting such evidence would fail to preclude finding that the evidence was improper under the federal due process clause. Phillips v. Neil, 452 F.2d 337 (6th Cir. 1971), cert. denied, 409 U.S. 884, 93 S. Ct. 96, 34 L. Ed. 2d 141 (1972). Our inquiry, then, is whether the admission of such evidence violated federal due process, rather than whether it violated state law.

Federal courts have construed the due process clause as 'permitting the states wide latitude in fashioning rules of evidence and procedure,' Bassett v. Smith, 464 F.2d 347, 351 (5th Cir. 1972), cert. denied, 410 U.S. 991, 93 S. Ct. 1509, 36 L. Ed. 2d 190 (1973). Or as another court of appeals has said,

'The question of admissibility of evidence usually is a matter of state law and procedure and does not involve federal constitutional issues . . .. And ordinarily habeas corpus being a collateral attack is not considered to be a proper remedy for correcting errors in trial procedure . . .. It is only where the trial errors or irregularities infringe upon specific constitutional protection or are so prejudicial as to amount to a denial of due process that a justiciable federal issue is presented in a habeas corpus proceeding.' Atwell v. Arkansas, 426 F.2d 912, 915 (8th Cir. 1972).

Accord, Spencer v. Texas, 385 U.S. 554, 562-564, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967). Moreover, this court should not strike down the Tennessee rule as unconstitutional when this court has allowed similar evidence to be admitted for similar purposes in federal district courts over which it exercises supervisory power. Spencer v. Texas, 385 U.S. 554, 563, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967); Bassett v. Smith, 464 F.2d 347, 351-352 (5th Cir. 1972), cert. denied, 410 U.S. 991, 93 S. Ct. 1509, 36 L. Ed. 2d 190 (1973), citing Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952). In Turner v. United States, 426 F.2d 480 (6th Cir. 1970), cert. denied, 402 U.S. 982, 91 S. Ct. 1646, 29 L. Ed. 2d 148 (1971), defendant claimed that the district court erred in admitting evidence of illegal acts occurring subsequent to the charged Dyer Act violation.

'The evidence of his identifying himself as the brother of Anthony Wallace in registering other Cadillacs is admissible in any event to show the modus operandi, guilty knowledge on the part of Turner and identity.' 426 F.2d at 483-484.

Other courts of appeals likewise have admitted such evidence. E.g., United States v. McCray, 140 U.S.App.D.C. 67, 433 F.2d 1173 (1970); United States v. Hoffman, 415 F.2d 14, 18-19 (7th Cir.), cert. denied, 396 U.S. 958, 90 S. Ct. 431, 24 L. Ed. 2d 423 (1969); United States v. Smith, 343 F.2d 607 (2d Cir. 1965); Fernandez v. United States, 329 F.2d 899, 907-909 (9th Cir.), cert. denied, 379 U.S. 832, 85 S. Ct. 62, 13 L. Ed. 2d 40 (1964); Hughes v. United States, 320 F.2d 459, 461-462 (10th Cir. 1963).

Though Turner failed to discuss constitutional problems in admitting such evidence, several federal courts, including the Supreme Court, have discussed such problems. In Lisenba v. California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 (1941), petitioner claimed that the admission, over objection, of testimony concerning the drowning death of his former wife denied him due process in his trial on charges of drowning a later wife. He claimed that he was given 'no opportunity to answer' such 'wholly disconnected' evidence. Though, as in the instant case, the 'other crime' apparently never resulted in a criminal charge, much less a conviction, the court sustained the admission of such evidence because of

' . . . the widely recognized principle that similar but disconnected acts may be shown to establish intent, design, and system. 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.' 314 U.S. at 227-228, 62 S. Ct. at 286.

Lisenba, of course, differs from the instant case in that there evidence of an uncharged crime was admitted technically to establish a common plan or scheme rather than to establish identity. Detailed analysis, however, reveals that such evidence cannot be so easily pigeonholed because the evidence held to be admissible in Lisenba, even if it established a common plan or scheme of murdering wives for insurance proceeds, also established the identity of the murderer. See Slough, Other Vices, Other Crimes: an Evidentiary Dilemma, 20 Kan.L.Rev. 411, 419 (1972); Note, Developments in Evidence of Other Crimes, 7 Mich.J.L.Ref. 535, 539, 547 (1974). But see McCormick, Evidence 452 (1972).

Moreover, Spencer v. Texas, 385 U.S. 554, 560-561, 87 S. Ct. 648, 652, 17 L. Ed. 2d 606 (1967), recognized, and implicitly sanctioned, the Texas rule permitting the use of prior offenses to establish identity, a rule which 'prevail(s) in nearly all common-law jurisdictions.' Accord, Foster v. California, 394 U.S. 440, 445, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969) (Black, J., dissenting). Though Spencer sustained the admission of prior criminal convictions at a recidivist trial, it recognized that the state interest in admitting evidence of prior crimes

' . . . in a one-stage recidivist trial may be thought to represent a less cogent state interest than does (admitting such evidence) for other purposes (such as establishing identity), in that other procedures for applying enhancement-of-sentence statutes may be available to the State that are not suited in the other situations in which such evidence is introduced. We do not think that this distinction should lead to a different constitutional result.' 385 U.S. at 563, 87 S. Ct. at 653.

Spencer, then, supports, if it fails to compel, a finding that the instant admission was constitutionally proper.

More importantly, perhaps, at least five federal courts of appeals have held that the admission of evidence similar to that of the Heathcott robbery establishes no constitutional violation cognizable on federal habeas corpus. Umbaugh v. Hutto, 486 F.2d 904 (8th Cir. 1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1978 (1974) (evidence that defendant raped another woman to establish his motive and intent); Heads v. Beto, 468 F.2d 240 (5th Cir. 1972) (evidence of two other murders to establish intent or motive); Cassasa v. Nelson, 452 F.2d 1083 (9th Cir. 1971) (evidence of two other fires to establish identity); United States ex rel. Holliday v. Adams, 443 F.2d 7 (2d Cir. 1971), aff'g 325 F. Supp. 444 (D. Conn. 1970) (evidence of second assault on victim to show defendant's consciousness of guilt); Ross v. Maroney, 372 F.2d 53 (3rd Cir. 1967) (evidence of another murder to establish intent, design, or motive).

People v. Lisenba, Cal.App., 89 P.2d 39, aff'd on rehearing, 14 Cal. 2d 403, 94 P.2d 569 (1939), aff'd, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 (1941), specifically rejected appellant's claim that 'constitutional fundamental fairness requires that . . . evidence (of the Heathcott robbery) be proved at a jury trial beyond a reasonable doubt.'

'The prosecution was (not) required, as urged by the defendant, to prove the elements of the asserted Colorado crime beyond all reasonable doubt, as would be the case were the defendant standing trial for such asserted earlier offense . . .. The court below correctly admitted the evidence touching the prior incident in order that the jury in its weighing of the entire evidence might determine whether it tended to show a common plan or scheme on the defendant's part or tended to overcome the asserted element of accident involved in the death of the subsequent wife . . ..' 89 P.2d at 52-53.

No American jurisdiction requires that evidence of the other crime be in the form of a prior conviction proved beyond a reasonable doubt. McCormick, Evidence 451-452 (1972). But see United States v. Haynes, 81 F. Supp. 63, 68-69 (W.D. Pa. 1948). See generally Comment, Evidence-- Prior Crimes Used to Show Specific Intent and Identity, 50 Marq.L.Rev. 133, 141 (1966). Many jurisdictions even allow evidence of other crimes for limited purposes where defendant has been acquitted, for technical reasons, of those crimes. Note, Other Crimes Evidence at Trial: of Balancing and Other Matters, 70 Yale L.J. 763, 770 (1961). But see 1 Jones, Evidence 414 (1972). The state, of course, must demonstrate defendant's connection to such other offenses. Comment, Evidence-- Prior Crimes Used to Show Specific Intent and Identity, 50 Marq.L.Rev. 133, 139 (1966).

A state cannot, by some evidential rule, permit evidence of all prior crimes 'ha(ving) some bearing, however tenuous,' on proving plan or scheme, motive, knowledge, intent, absence of mistake or accident, or identity. Umbaugh v. Hutto, 486 F.2d 904, 907 (8th Cir. 1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1978, 40 L. Ed. 2d 311 (1974). To be consistent with due process, the other crime must be 'rationally connected' with the charged crime.⁸  See Comment, Evidence-- Prior Crimes Used to Show Specific Intent and Identity, 50 Marq.L.Rev. 133, 136 (1966).

Moreover, in rejecting appellant's due process claim, we note that appellant, by testifying to his alibi, placed the identity of the Sheehan robber in issue. Where there is no question concerning the identity of the robber, as for example where mental incapacity is a defense, evidence of other crimes tending to identify that robber may well be unconstitutional 'overkill' because the prejudice in such evidence outweighs the probative need for such evidence. But see United States ex rel. Gueldner v. Heyd, 434 F.2d 1307 (5th Cir. 1970).

As for appellant's claim that the trial judge's failure to give an unrequested alibi instruction was constitutional error, we find no error cognizable on federal habeas corpus. Cf. United States v. Megna, 450 F.2d 511 (5th Cir. 1971).

Because we have found no constitutional error, it is unnecessary to consider the state's claim that any such error in appellant's trial was harmless beyond a reasonable doubt.

Affirmed.