Hugh Naughten v. Hoyt C. Cupp, Superintendent, Oregon State Penitentiary , 476 F.2d 845 ( 1973 )

ELY, Circuit Judge:

Naughten is an Oregon state prisoner, convicted of the offense of armed robbery. His direct appeal in the Oregon state courts was unsuccessful. State v. Naughten, 90 Adv.Or. 1811, 471 P.2d 830 (App. 1970). Eventually, Naughten filed a petition for habeas corpus in the court below, and he now appeals from the denial of that petition.

In the state court trial, the judge, over Naughten’s objection,¹ instructed the jury as follows:

“Every witness is presumed to speak the truth. This presumption may be overcome by the manner in which the witness testifies, by the nature of his or her testimony, by evidence affecting his or her character, interest, or motives, by contradictory evidence, or by a presumption.”

Such an instruction has been almost universally condemned. See United States v. Birmingham, 447 F.2d 1313 (10th Cir. 1971); United States v. Stroble, 431 F. 2d 1273 (6th Cir. 1970); McMillen v. United States, 386 F.2d 29 (1st Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288; United States v. Dichiarinte, 385 F.2d 333 (7th Cir. 1967); United States v. Johnson, 371 F.2d 800 (3d Cir. 1967); United States v. Persico, 349 F.2d 6 (2d Cir. 1965). See also United States v. Safley, 408 F.2d 603 (4th Cir. 1969); Harrison v. United States, 387 F.2d 614 (5th Cir. 1968); Stone v. United States, 126 U.S.App.D.C. 369, 379 F.2d 146 (1967). In Stone v. United States, supra, Judge, now Chief Justice, Burger, wrote:

“[This instruction] has a tendency to impinge on the presumption of innocence. Lurking in such an instruction is the risk that the jury might conclude that they were required to accept the testimony of the prosecution’s witnesses at face value, particularly when it is not contradicted by other witnesses.”

379 F.2d at 147.

In the state court trial, Naughten did not testify, nor did he present any witnesses in his defense. Thus, the clear effect of the challenged instruction was to place the burden on Naughten to prove his innocence. This is so repugnant to the American concept that it is offensive to any fair notion of due process of law. See Bentley v. Crist, 469 F. 2d 854, 855 n. 2 (9th Cir. 1972).

The appellee contends that other of the court’s instructions offset the vice of the instruction that we have quoted. We do not agree, for there was no instruction so specifically directed to that under attack as can be said to have effected a cure.

The appelleee also contends that the instruction, even if fatally defective under the federal constitution, was, in the circumstances, harmless beyond all reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed. 2d 705 (1967). We reject this argument also. Once Naughten established the infringement of a constitutionally protected right, the burden shifted to the appellee to establish that the error was harmless under the Chapman standard. From our examination of the transcript of the trial proceedings, we conclude that the appellee could not, in this case, meet the burden. Cf. Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968).

Naughten is entitled to a new trial; therefore, upon remand, the District Court will hold the petition in abeyance for a reasonable period, not to exceed sixty days, so as to afford Oregon the opportunity to reprosecute Naughten should it choose to do so.

Reversed and remanded.

ORDER ON PETITION FOR REHEARING

The court amends its original opinion in the subject case as follows:

(1) The insertion of a footnote reference¹ after the word “objection,” the last word of the first line of the second paragraph of the slip opinion of May 24, 1972.^*

(2) The addition of a footnote¹ reading as follows: “The fact that Naughten made a timely objection to the instruction deserves emphasis. Absent such an objection, he would be in no position to challenge it. This is because, in the circumstances of a particular case and because of other contents of the instruction, an accused’s attorney might appropriately deem it strategically advantageous to the accused that the instruction be given.”

The court’s original opinion having been thus amended, the panel as originally constituted has voted to deny the petition for rehearing and to reject the suggestion for en banc rehearing.

The full court has been advised of the suggestion for en banc rehearing and has been advised of the foregoing amendments to the court’s original opinion.

A judge in active service having requested that a vote be taken on the appellee’s suggestion for en banc rehearing, such a vote has been taken. Fed.R.App.P. 35(b). Judges Chambers, Koelsch, Wright, Trask, Goodwin, and Wallace would have granted en banc rehearing, and Judge Chambers wishes it recorded that he presently intends to write and file, at a later date, a separate opinion explaining his views.

The other six judges in active service voted to reject the suggestion for en banc rehearing. The vote being equally divided, the suggestion for en banc rehearing is rejected.

1 . The fact that Naughten made a timely objection to the instruction deserves emphasis. Absent such an objection, he would be in no position to challenge it. This is because, in the circumstances of a particular ease and because of other contents of the instruction, an accused’s attorney might appropriately deem it strategically advantageous to the accused that the instruction be given.

* Editor’s Note: The changes have been made in the original opinion.