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March 19, 1981

Curtis Lee JOHNSON, Petitioner,
James SPALDING, Respondent

The opinion of the court was delivered by: QUACKENBUSH


Petitioner seeks a writ of habeas corpus. He is confined as a result of a conviction for first degree murder. He challenges that confinement alleging: (1) an alibi instruction shifted the state's burden of persuasion onto him; (2) the reasonable doubt instruction overstated the uncertainty required for a reasonable doubt; (3) an adverse missing witness inference prejudiced a fair trial; (4) the admission of prior trial testimony of an unavailable state's witness violated the right to confrontation; (5) a limitation upon the scope of impeachment testimony violated the right to confrontation and cross-examination; (6) the admission of a letter to show hostility to the prosecutor biased the jury; and (7) his right to effective assistance of counsel was denied.

 Petitioner was charged in Walla Walla County Washington Superior Court with the first degree murder on January 7, 1976 of a prisoner inmate. At trial Petitioner testified and produced witnesses to support his alibi defense. A deadlocked jury and extensive media coverage necessitated a second trial with venue in Snohomish County. The second jury found Petitioner guilty. Petitioner returned to Walla Walla County for pronouncement of a life imprisonment sentence.

 Division III of the State of Washington Court of Appeals reviewed the same errors as alleged in this Court, affirming the conviction. Its opinion is published in part at State v. Johnson, 19 Wash.App. 200, 574 P.2d 741 (1978). The Washington Supreme Court refused a discretionary review. Subsequently, Petitioner instituted this collateral attack upon his confinement as allegedly imposed contrary to the United States Constitution.

 There was some initial concern with the propriety of our jurisdiction to entertain Petitioner's application for a writ. Jurisdiction is limited by 28 U.S.C. § 2241(d) which permits an application to be filed "in the district court for the district wherein such person is in custody or ... the district within which the State Court was held which convicted and sentenced" the petitioner. Petitioner filed his application for the writ while in Shelton State Reformatory within the territorial reach of the federal court for the western district of Washington, *fn1" thus our concern for jurisdiction under the "in custody" requirement. However, the jurisdictional basis under the criteria of this court's jurisdiction over the proceedings of the court "which convicted and sentenced" is considerably stronger.

 Following his trial in the County of Snohomish, Petitioner and the full record of his case were returned to the control of Walla Walla County Superior Court within this district. It appears that the ministerial act of entering the judgment of conviction occurred in Walla Walla County Cause No. 66747. Post trial motions, sentencing, and the commitment occurred in Walla Walla County. We understand that a Washington conviction may mean a "formal finding or declaration of guilt as in a judgment and sentence". State ex rel. Brown v. Superior Court, 79 Wash. 570, 140 P. 555 (1914). These facts would satisfy the "convicted and sentenced" language of the statute, § 2241(d). Therefore, this Court is satisfied that it has jurisdiction.

 The Court recognizes that the Constitution must not be lightly construed "so as to intrude upon the administration of justice by the individual states" and, that "among other things it is normally "within the power of the state to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion, and its decision in this regard is not subject to proscription under the Due Process Clause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental". Patterson v. New York, 432 U.S. 197, 201-02, 97 S. Ct. 2319, 2322, 53 L. Ed. 2d 281 (1977). However, if the alibi instruction *fn2" required the defendant to produce evidence and convince the jury as to his innocence of the elements of the crime, the instruction would offend the presumption of innocence *fn3" "ranked as fundamental". This Court would intervene in such a case to overturn the state court's verdict. Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973).

 Petitioner argues that the alibi instruction given at trial removed the prosecution's burden to produce evidence and persuade the jury as to the essential elements of crime and placed that requirement upon him. To assess this contention, the Court must look to all of the instructions and not to an isolated word or sentence. Cupp v. Naughten, supra, 146-47, 94 S. Ct. at 400.

 An alibi defense is the presentation of evidence in an attempt to refute the state's evidence concerning an essential element the defendant's presence. The challenged instruction states the law of the "defense of alibi" as a rule affecting the evidentiary and procedural order of proof. The instruction does not compel the jury to first believe the state's evidence. It does not operate in effect to tell the jury "before you can acquit the defendant by reason of his defense of alibi, you must find that he has established it (by some evidentiary measure)". Stump v. Bennett, 398 F.2d 111, 119 n.6 (8th Cir. 1968) (en banc).

 On balance, the instruction and the charge as a whole made the jurors' duty clear. The sum of the instruction is that, even if the jury should determine that the defendant presented insufficient evidence of alibi (the alibi evidence in this case was substantial) or should disbelieve the evidence, the jury must weigh all the evidence submitted and should acquit if there is a reasonable doubt of guilt. Furthermore, the charge requires the state, not the defendant, to meet the reasonable doubt standard to convince the jurors of the defendant's presence and guilt of the crime. The Court concludes that the alibi instruction by its language neither shifts the burden of proof nor negates the explicit presumption of innocence charged by Instruction No. 11. The giving of the instruction did not offend the Constitution. *fn4"

 Petitioner alleges that the giving of Instruction 14 *fn5" equated reasonable doubt with substantial doubt thereby overstating the degree of uncertainty required for acquittal. Petitioner provides no authority to support the contention that giving this instruction violates the Constitution. Petitioner's support lies mainly in direct appeal cases, not collateral attacks on state court convictions. In habeas proceedings Petitioner must go further than showing error or even plain error. He must show plain constitutional error which prejudiced his fundamental right to a fair trial. See, Henderson v. Kibbe, 431 U.S. 145, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977). The giving of this instruction does not raise an issue of constitutional dimensions.

 As stated above, an isolated word or sentence in an instruction must not control the Court's decision; rather, the Court must look to the whole charge. A reasonable doubt instruction may stand as a whole even if one part of the instruction is misleading. Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 137, 99 L. Ed. 150 (1954). In this instance the language of the instruction, viewed in its entirety did not equate reasonable with substantial doubt. United States v. Loman, 551 F.2d 164, 167 (7th Cir. 1976) cert. denied, 433 U.S. 912, 97 S. Ct. 2982, 53 L. Ed. 2d 1097 (1977), citing United States v. Lawson, 507 F.2d 433 (7th Cir. 1974) (definition of reasonable doubt as "a doubt that is based on reason and must be substantial rather than speculative" is based on acceptable authority; Id., ...

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