Professional Documents
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2d 1472
evidence. He alleged that the state court trial counsel had been ineffective
because he failed to object to the trial court's granting of a motion in
limine prohibiting the defense from offering evidence of the victim's past
sexual conduct. The petition also claimed that Smelcher had discovered
new evidence in the form of a letter written by his sister-in-law. The letter
demonstrated, according to Smelcher, an attempt to hire the victim to
frame Smelcher on a charge of rape. The trial court denied the petition
without an evidentiary hearing.
On appeal, Smelcher argued that his petition should not have been denied
without an evidentiary hearing. The State asserted that he had not met his
burden of proving ineffective assistance of counsel and the Court of
Criminal Appeals agreed, affirming without an opinion on October 11,
1988. Once again, despite the existence of new evidence, no evidentiary
hearing was held.
In June of 1989, Smelcher filed his federal habeas petition, arguing similar
issues to those raised in his original petition. The magistrate issued a
report and recommendation addressing all of the appellant's claims and
suggesting that the petition be dismissed. Appellant filed objections to the
magistrate's findings, continuing to argue that ineffective assistance of
counsel caused the procedural default on his motion in limine claim.
Furthermore, Smelcher, still proceeding pro se, argued that at his state
trial his attorney "knew of his client's and [the victim's] past sexual
relationship, ... [and] had previously advised his client that it was his
intention to use the past sexual relationship as his defense." Finally, in
these same objections to the magistrate's report and recommendation,
Smelcher argued that "two witnesses have knowledge of past sexual
relations between the appellant and [the victim]." Immediately following
this allegation, Smelcher lists the names of two neighbors who he claims
can support this assertion if he is granted an evidentiary hearing.
After considering the magistrate's findings de novo and without the
assistance of an evidentiary hearing, the district court judge approved the
recommendation of the magistrate and dismissed the petition.
DISCUSSION
Smelcher raises three issues on appeal. First, appellant argues that the trial
court improperly denied a jury charge which would have informed the
jury of the lesser included offense of sexual misconduct. Second,
appellant argues that the trial judge incorrectly directed a verdict in the
jury charge. Finally, appellant argues that he was entitled to an evidentiary
may not attempt to focus a jury's attention on the facts in a case which
remain unresolved. Alabama law, for example, holds that a trial court
judge has inherent power to direct the attention of the jury to undisputed
evidence. Jones v. State, 488 So.2d 48 (Ala.Crim.App.1986).
In the instant case, the record reflects that Smelcher admitted to the
intercourse during his own testimony. His defense was consent. The
evidence of intercourse, therefore, was undisputed. It was in no way
improper for the judge to focus the jury's attention on the portion of the
crime which they were to resolve. Accordingly, there was no
constitutional violation here.3
C. Denial of Evidentiary Hearing on Ineffective Assistance
The appellant asserts that the district court erred in finding, without
holding an evidentiary hearing, that trial counsel was not ineffective. This
issue was not raised on direct appeal to the magistrate, but was raised in
the state petition for post-conviction relief and in appellant's objections to
the magistrate's report and recommendations.
Prior to the beginning of the state court trial, the trial judge granted a
motion in limine prohibiting the defense counsel from introducing
evidence concerning any prior sexual activity of the victim. 4 Nevertheless,
the wording of the Alabama Rape Shield statute expressly allows for the
admission of evidence indicating prior sexual activity between a defendant
and the victim.5 In addition to ignoring the statute's procedure for
excluding evidence, the state trial judge failed to even allow argument on
the motion. Unfortunately, neither Alabama law nor federal law allows the
court to address directly the state court's misapplication of the statute.
The Alabama case State of Alabama v. Biddie, 516 So.2d 846 (Ala.1987),
outlines the Alabama Supreme Court's view on plain or obvious error on
the trial court level. In that case the defendant was convicted of murder.
The defendant was indicted on "intentional murder," but the trial court
gave an oral instruction on "reckless murder." Prior to this case, the
Alabama Supreme Court had found such an instruction to be reversible
error. Nevertheless, defendant's counsel at trial failed to object.
The Alabama Court of Criminal Appeals reversed the conviction because
the trial court's error was obvious. See Biddie v. State, 516 So.2d 837
(Ala.Crim.App.1986). The court, relying primarily on a comparison to
Fed.R.Crim.P. 52(b),6 found that it could ignore the failure to object to the
instruction because this case involved plain or obvious error.
The Alabama Supreme Court rejected any such extension of the plain
error analysis. The court stated that "[a]bsent an objection to an alleged
error and a ruling by the trial court, there is nothing for this court to
review." Biddie, supra.7 The court then stated the rule that the "plain error
doctrine applies only to death cases." Id. Accordingly, the court refused to
consider the merits of defendant's claim.
Even if Alabama allowed review on the grounds of plain error, the law is
unclear whether a federal court on a writ of habeas corpus can apply this
standard. In Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir.), cert.
denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979), the Sixth
Circuit, ruling on a writ of habeas corpus, ignored a failure to object to the
prosecutor's final argument because "the alleged error [was] plainly
evident on the record." The court expressly refused to apply the
Wainwright cause and prejudice standard. Six years later, however, the
court reversed itself and held that "the plain error standard may be used
only on direct appeal and not on collateral attack." Gilbert v. Parke, 763
F.2d 821, 825 (6th Cir.1985).8
Because this court cannot directly address the state court's error, we must
consider appellant's ineffective assistance of counsel claim. Smelcher's
trial counsel failed to object to the granting of the motion in limine. As a
result of this failure, appellant is procedurally barred from raising these
claims on appeal. The Supreme Court, in the Wainwright case, held that a
federal habeas prisoner who has failed to fulfill a state's contemporaneous
objection rule must show cause for the procedural default and prejudice
which accrues from the error in order to obtain review of his defaulted
claim. Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506. As far as cause is
concerned, it has been established that constitutionally ineffective
assistance of counsel may be cause for a procedural default. Murray v.
Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986).
Thus, if ineffective assistance of counsel is proven, the cause prong of
Wainwright will be satisfied.
As outlined earlier, the two-pronged Strickland test for ineffective
assistance of counsel requires, first, that the appellant show counsel's
performance was deficient, and second, that the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Smelcher argues that his trial counsel was ineffective because even though
his trial counsel knew of past sexual relations between Smelcher and the
victim and planned to use this to support a defense of consent, he failed to
make an objection to the motion in limine or an offer of proof as allowed
by Alabama Code 12-21-203(d) when the court ruled that no evidence
Honorable Walter E. Hoffman, Senior U.S. District Judge for the Eastern
District of Virginia, sitting by designation
In the present case the magistrate, relying on the case of Beck v. Alabama, 447
U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), ruled that "except in death
penalty cases a defendant in a criminal trial has no federal constitutional right to
a jury charge on a lesser included offense." Adopting the magistrate's
recommendations, the district court affirmed the denial of the sexual
misconduct charge
It is important to note, however, that the Beck Court reserved decisions on the
issue of charging juries of lesser included offenses in noncapital cases, stating "
[w]e need and do not decide whether the Due Process Clause would require the
giving of [lesser included offense] instructions in a noncapital case." Id. at 638
n. 14, 100 S.Ct. at 2390 n. 14. Accordingly, the Supreme Court, although
recognizing that all state courts addressing this issue grant the lesser included
charge where the evidence warrants it, id. at 635-36, 100 S.Ct. at 2388-89,
failed to completely resolve the problem.
In the case of Ex parte Cordar, 538 So.2d 1246 (Ala.1988), the Alabama
Supreme Court ruled that a defendant charged with rape is entitled to a jury
charge of the lesser included offense of sexual misconduct where the evidence
shows that the victim did not scream for help and no external bruises exist on
the victim's body or pelvic area. Under Alabama law, in other words, the lack
of evidence of physical force in an alleged rape requires the trial judge to give
the jury charge of the lesser included offense of sexual misconduct. See
Ala.Code 13A-6-61 (1975). Nevertheless, in this case, appellant has failed to
demonstrate with a reasonable probability that such an instruction would have
caused the jury to reach a different decision.
3
Furthermore, following the objection by counsel for Smelcher, the judge issued
a curative instruction which certainly clarified any ambiguity caused by the
initial instruction
(1) At the time the defense shall seek to introduce evidence which would be
covered by subsection (c) of this section, the defense shall notify the court of
such intent, whereupon the court shall conduct an in camera hearing to examine
into the defendant's offer of proof. All in camera proceedings shall be included
in their entirety in the transcript and record of the trial and case;
(2) At the conclusion of the hearing, if the court finds that any of the evidence
introduced at the hearing is admissible under subsection (b) of this section, the
court shall be [sic] order state what evidence may be introduced by the defense
at the trial of the case and in what manner the evidence may be introduced; and
(3) The defense may then introduce evidence pursuant to the order of the court.
Ala.Code 12-21-203 (1977) (emphasis added).
6
Rule 52(b) states, "that plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the court."
The rule that "[r]eview on appeal is limited to review of any questions properly
and timely raised at trial," is often repeated by the Alabama courts. See, e.g.,
Dixon v. State, 476 So.2d 1236, 1239 (Ala.Crim.App.1985); Hill v. State, 571
So.2d 1297, 1298-99 (Ala.Crim.App.1990)
The Gilbert court relied on the United States Supreme Court's opinion in
United States v. Frady, 456 U.S. 152, 165-66, 102 S.Ct. 1584, 1593, 71 L.Ed.2d
816 (1982), which held that a federal court could not use plain error analysis to
review a federal prisoner's 2255 habeas petition
Because Smelcher admitted to having intercourse with the victim, the threshold
question here was whether the act was done with forcible compulsion. The fact
that the jury came back after a little over an hour and asked the judge whether
Smelcher and the victim had had sexual relations in the past demonstrates that
this information would have been quite important in determining the issue of
force. If the jury had concluded that no force was involved, Smelcher could not
have been convicted of rape in the first degree. See Ala.Code 13A-6-61(a)(1)
(1975)