Steve Stumbo v. William Seabold, Superintendent, Luther Luckett Correctional Complex, Lagrange, Kentucky , 704 F.2d 910 ( 1983 )

MERRITT, Circuit Judge.

Petitioner appeals from the District Court’s denial of his petition for habeas corpus relief under 28 U.S.C. § 2254. Petitioner was convicted in a Kentucky court of first degree murder, and given the minimum sentence of 20 years. He claims that he was denied due process of law under the fourteenth amendment by the Kentucky law allowing the victim’s family to hire a private prosecutor to prosecute the ease. Alternatively he alleges that even if the use of private prosecutors is not per se unconstitutional, the retained prosecutor in this case engaged in such gross misconduct that petitioner was denied a fair trial. The magistrate who originally heard this case recommended granting the writ on the ground of prosecutorial misconduct. The District Judge, however, denied the writ, finding that the prosecutor’s conduct, although improper, was not egregious enough to deprive the defendant of a fundamentally fair trial.

We do not believe that Kentucky law, which allows a privately retained prosecutor to assist the public prosecutor in criminal cases, constitutes a per se violation of due process. Many states have such laws, although they are rarely used. Petitioner argues that the private prosecutor has a single-minded goal of obtaining a conviction because his only ethical obligation is to his client (the victim or his family) while the public prosecutor’s duty is to seek “justice” on behalf of the state. Kentucky law, however, requires the public prosecutor to retain control over the conduct of the trial to ensure that the state’s interests are protected. Absent some evidence that the private prosecutor has in fact ignored the interests of justice in favor of seeking a conviction, his assistance of the public prosecutor is not a per se constitutional violation.

On habeas corpus review, the standard to be applied to allegation of prosecutorial misconduct is whether the petitioner was deprived of a fundamentally fair trial. Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.1979). Our careful review of the record convinces us that in the context of this case, where the evidence of guilt was weak, the private prosecutor’s misconduct deprived the petitioner of a fair trial. We are concerned that a serious injustice may have occurred in this case, and we believe that there should be another trial, one in which the egregious acts of prosecutorial misconduct which occurred in the first trial are not present.

Every tribunal which has reviewed this case has agreed that prosecutor Burns’ conduct was highly improper. The Kentucky Supreme Court’s description of his misconduct clearly and concisely demonstrates the kind of tactics used by the prosecutor to obtain a conviction.

Instances of Mr. Burns’ misconduct cited by Stumbo include: calling the victim “the dead boy” on ten separate occasions during trial; repeatedly shouting at witnesses; flourishing the murder weapon in the faces of the jury and the witnesses; snapping the revolver’s trigger repeatedly while cross-examining appellant, calling appellant “Johnny Murder Boy”; calling the victim’s death an execution; referring to the offense as “cold-blooded murder” several times; calling appellant’s defense a “cock-and-bull story”; calling for a guilty verdict to prevent murder cases from being “stacked up” in Floyd County; stating to the jury during closing argument that appellant “committed the crime of murder, in our opinion”; asking questions of defense witnesses Mr. Burns knew would be denied and for which he knew no proof would be offered; and repeating questions previously ruled inadmissible. Appellant objected to each of the above instances.

Stumbo v. Commonwealth (file No. 80-SC-422-MR), Memorandum Opinion at 3.

We find especially egregious Mr. Burns’ attempts to suggest to the jury through cross-examination and final argument, the existence of a conspiracy to murder between the defendant and his cousin, when there was absolutely no evidence to support such a theory. (Tr. 261-62, 380) Also highly improper were Mr. Burns’ references to the defendant as “Johnny Murder Boy” (Tr. 379), and his statement to the jury that if they believed this “cock-and-bull story” murder cases would be “stacked up” in Floyd County. (Tr. 383)

Had the evidence of guilt been overwhelming in this case, prosecutorial misconduct might be considered harmless error. There was little evidence, however, to support the prosecution’s theory of intentional homicide and a significant amount of evidence to support the defendant’s claim of accidental shooting. The only evidence the State cited during oral argument to support the theory that the defendant intended to shoot the decedent was the testimony of one witness to the effect that defendant Stumbo walked up to the decedent and put the gun right up against his stomach, and then it went off. (Tr. 112) He was the only witness who actually saw the shooting occur. The testimony of the other two prosecution witnesses was ambiguous. Apparently they did not see exactly how the gun fired at the last minute and only heard the shot. All the witnesses admitted that (1) defendant Stumbo and the decedent were brothers-in-law and good friends, (2) the shooting occurred in the context of defendant attempting to break up a fight between his cousin and the decedent, (3) the cousin had cocked the gun before placing it on the seat of the car, and (4) immediately after the shooting, defendant Stumbo said, “Oh God, I didn’t know the gun was cocked.”

Since the issue of the sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), was not exhausted in state court nor raised by the parties, we have no occasion to rule on this issue. We do hold that in a case such as this, where the evidence of guilt is at best conflicting, prosecutorial misconduct such as that which occurred in the instant case, which tends to prejudice and inflame the jury, deprives the defendant of a fundamentally fair trial and deprives him of due process of law.

Accordingly, we reverse the decision of the District Court and grant the writ of habeas corpus, with orders that the State of Kentucky either release the petitioner or retry him within 90 days.