464 U.S. 951 (1983)

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U.S. Supreme Court

MARSHALL v. WALKER , 464 U.S. 951 (1983)

464 U.S. 951

Ronald C. MARSHALL, Superintendent, Southern Ohio Correctional Facility
Raymond WALKER
No. 83-151

Supreme Court of the United States

October 31, 1983

On petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit.

The petition for writ of certiorari is denied.

Justice REHNQUIST, with whom THE CHIEF JUSTICE and Justice O'CONNOR join, dissenting from denial of certiorari.

Respondent Walker was indicted in Stark County, Ohio, for murdering an off-duty policeman during a grocery store robbery in July, 1972. Two accomplices, the wife of the victim, and a disinterested eyewitness identified respondent as the perpetrator of the murder. Respondent's defense was alibi; the records of the jail in Cuyahoga County, Ohio, showed on their face that Walker was incarcerated there between April 14 and August 1, 1972. If these records were accurate, Walker could not have been in the grocery store on July 22, 1972, when the murder took place. The accuracy of these records was hotly contested at trial.

After a jury trial respondent was convicted of first-degree murder. His conviction was affirmed by the Ohio Court of Appeals and by the Supreme Court of Ohio, State v. Walker, 55 Ohio St-

Page 464 U.S. 951 , 952

.2d 208, 378 N.E.2d 1049 (1978), cert. denied, 441 U.S. 924 (1979). Respondent then sought federal habeas relief in the United States District Court for the Northern District of Ohio, which granted the writ on the ground that six evidentiary rulings of the Ohio trial court concerning the scope of prosecutorial cross-examination and rebuttal testimony denied respondent a fair trial as guaranteed by the Fourteenth Amendment. The Court of Appeals for the Sixth Circuit affirmed the judgment on the same grounds. Walker v. Engle, 703 F.2d 959 (CA6 1983). I would grant certiorari to review this novel holding that trial rulings on the scope of prosecutorial cross-examination and rebuttal testimony are cognizable on federal habeas. No case from this Court has ever held that they are, and several of our cases strongly suggest that they are not. See Davis v. Alaska, 415 U.S. 308, 317, 1111 (1974); Liscenba v. California, 314 U.S. 219, 227, 285 (1941); see also Donnelly v. DeChristoforo, 416 U.S. 637 (1974) (prosecutorial misconduct); Cupp v. Naughten, 414 U.S. 141 (1973) ( erroneous jury instruction).

Respondent has contended throughout that irrelevant and prejudicial evidence was allowed before the jury. The Supreme Court of Ohio rejected his contention with this language:

"Upon a review of the contested testimony, we find that it was relevant, in that it tended to disprove the accuracy of the jail records, which was a question in dispute in the instant cause. The contested evidence went to the credibility of the various jail records by demonstrating the overall inefficiency of the persons and the system in which they were maintained and the general lack of inmate supervision.

Moreover, upon an examination of the record, we find the admission of certain of the testimony occurred without an objection and that a great proportion of this testimony occurred during cross- examination. The trial judge is posited with broad discretion in controlling cross-examination, and the appellant has the burden to show a patent abuse of discretion. We find, in the instant cause, that the admission of this testimony was relevant to the credibility of the jail records which support appellant's alibi and was neither an abuse of discretion nor a resultant prejudicial harm to appellant ." State v. Walker, 55 Ohio St.2d, at 214, 378 N.E.2d 1049 (footnote and citations omitted). [464 U.S. 951 , 953]

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