Fred Tweety, Jr. v. J. P. Mitchell, Warden

MURNAGHAN, Circuit Judge,

dissenting:

Dissent is an uncongenial judicial pursuit, as the present case demonstrates. The crime with which the defendant was charged was ugly, and the evidence was abundantly sufficient to convict under proper instructions to the jury. Tweety’s own version, if believed, however, would have exonerated him. The testimony of one other witness lent some credence to Tweety’s tale. It is elementary that the jury, as the weigher of credibility, may accept the testimony of one witness and reject the evidence of a dozen others. Thus I cannot accept the harmless error disposition of the majority. Cf. Eberhardt v. Bordenkircher, 605 F.2d 275, 279 (6th Cir. 1979) *466(error was not harmless where the defendant “presented an alibi which, though far from indisputable, was consistent and credible enough that it might have been accepted by a reasonable juror”); Dallago v. United States, 427 F.2d 546, 559 (D.C.Cir.1969) (error was not harmless where “[t]he conviction necessarily rests to a substantial degree on the jury’s assessment of the credibility of the opposing Government and defense witnesses, including appellant”).

Nor am I comfortable with the conclusion that there was failure to make a contemporaneous objection which affords an adequate basis for the Virginia court’s denial of habeas corpus and insulates the conviction from review by us. In my humble judgment, that procedural basis for disposing of cases of this sort is a smokescreen behind which to hide when, on the merits, articulation of grounds for denying relief would be difficult, or even merely tedious, but the state court is satisfied that the end result was appropriate, without regard to whether it was reached in an appropriate manner. If Tweety’s case had been appealing on the merits, I regard it as highly probable that the Virginia Supreme Court would have reached the merits in order “to attain the ends of justice.” Va.Sup.Ct.R. 5:21. A state contemporaneous objection rule with an exception which turns on the merits of a federal constitutional claim cannot in my view serve as an independent and adequate state ground for decision.

In that connection, I find unconvincing the majority’s reliance on Coppola v. Warden, 222 Va. 369, 282 S.E.2d 10 (1981) — in which the Virginia Supreme Court specifically mentioned as its basis for decision “the failure of Coppola’s counsel to interpose at trial a contemporaneous objection” — to interpret what the Virginia Supreme Court meant when in Tweety’s case it refrained from using any such language. The reasons for applying the logic of County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979) are strong, and I make so bold as to suggest that, if Tweety, in the eyes of the majority, had an appealing case creating a persuasive likelihood that the ends of justice had not been obtained, my colleagues would not have reached the conclusion that the taciturnity of the Virginia Supreme Court should be construed as an intended application of the contemporaneous objection requirement and not a decision on the merits.

For me, the ends of justice are not served when an instruction has been given viola-tive of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), Mulla-ney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). If he were tried again, Tweety might well be convicted again. Nevertheless, he has the right to insist that the trial be fair, and we the responsibility to see that it is so. Thus I would grant the writ.