LOCATION: Former Ada County Courthouse
DOCKET NO.: 71-237
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 408 US 204 (1972)
ARGUED: Apr 17, 1972
DECIDED: Jun 26, 1972
Bruce K. Carpenter - for respondent
Maria L. Marcus - for petitioner
Facts of the case
Media for Mancusi v. Stubbs
Audio Transcription for Oral Argument - April 17, 1972 in Mancusi v. Stubbs
Warren E. Burger:
-- in number 71-237, Mancusi against Stubbs.
Mrs. Marcus, we'll pause for a moment until Mr. Carpenter gets settled.
Maria L. Marcus:
Mr. Chief Justice and may it please the Court.
This habeas corpus proceeding presents the question of whether New York is prohibited from using a 1964 Tennessee murder conviction as a predicate for increased punishment.
This Tennessee conviction resulted from a retrial where the prior recorded testimony of a witness was read into the record because the witness had since moved to Sweden.
To state briefly the history of the Tennessee and New York proceedings, the crime of which respondent Stubbs was convicted was a 1954 murder of Mrs. Alex Holm.
Stubbs met Mr. and Mrs. Holm, an elderly Swedish couple who were strangers to him at a road side picnic table.
He kidnapped them at gunpoint and ultimately murdered Mrs. Holm and seriously wounded her husband.
At Stubbs' 1954 trial, defendant was represented by three appointed counsel.
Alex Holm testified as did Stubbs himself and Stubbs was convicted of first degree murder, kidnapping and assault with intent to murder.
Nine years later, Stubbs moved for a writ of habeas corpus in the District Court in Tennessee asking that his conviction be vacated on the grounds that his attorneys were appointed three days before trial.
The District Court under a former Circuit Court rule, which required automatic reversal in cases of tardy appointment of counsel, vacated Stubbs' first trial and remanded him for possible retrial.
At the second trial in 1964, the prosecutor sent a subpoena to Alex Holm's former address, a farm in in Texas, which was returned unsigned and he also contacted Holm's son, who advised the court that his father was now a permanent resident of Sweden.
His son took the stand and so testified.
The prior testimony of Holm was then read into the record over objections by counsel.
Stubbs was among the witnesses who testified.
He was convicted of first degree murder.
The conviction was appealed to the Supreme Court of Tennessee and affirmed.
After his release from the Tennessee prison, he went to Monroe County, New York, where he was arrested and convicted for first degree assault and possession of a firearm.
Based upon the predicate of the Tennessee conviction, his sentence as second felony offender was 32-34 years.
Warren E. Burger:
How long did he serve in -- on the first sentence?
Maria L. Marcus:
Well, when he appealed his conviction to the Tennessee Supreme Court, they gave him credit for the 10-year period between trials and apparently he served only about two more years and it's not explained exactly why he was paroled at that point but that's apparently what happened.
A petition for writ of habeas corpus challenging both convictions was filed in United States District Court for the western district of New York, which denied the petition.
The Second Circuit, which had granted a certificate of probable cause solely on the grounds of the validity of the Tennessee conviction reverse the District Court.
The Court below held that respondent had been deprived of his right of confrontation at the Tennessee retrial because due diligence had not been exercised to obtain the presence of the absent witness before the testimony of Alex Holm was read into the record and because counsel of the first trial had been tardily appointed and had not questioned Holm about whether after Stubbs had kidnapped the Holms at gunpoint, they had made him welcome as their Guest.
This absence of questioning on the Guest theory; the majority held it could not be harmless error.
The dissenting judge Leonard P. Moore called the majority decision an extraordinary example of justice dispensed by the federal courts.
We urge reversal of the decision below on three grounds.
First, that there was no lack of due diligence in obtaining presence of the witness.