Gary Leroy Douglas v. Hoyt C. Cupp, Superintendent, Oregon State Penitentiary

Gary Leroy Douglas appeals from a judgment of the United States District Court for the District of Oregon (Otto R. Skopil, Jr., Chief Judge), dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . Following a jury trial held in the circuit court for Coos County, Oregon, Douglas was convicted of burglary in the first degree. He was awarded an indeterminate sentence, the maximum term not to exceed fifteen years.

The Oregon Court of Appeals affirmed this conviction without opinion, 23 Or.App. 221 , 541 P.2d 833 (1975), and the petitioner did not seek review of the case in the Oregon Supreme Court. 1 Subsequently, petitioner sought, and was denied, federal ha- *267 beas corpus relief. He presently appeals that judgment of the district court.

Petitioner Douglas presents us with a single issue on this appeal. At trial, the state prosecutor called Douglas’ arresting officer as a state witness. After substantial questioning, Trial Tr. at 154-159, the following colloquy took place between the prosecutor and the arresting officer.

Q. Who arrested Mr. Douglas?

A. I did.

Q. Did he make any statements to you? A. No.

Prosecutor: That’s all the questions I…

dissenting:

I am not convincéd that Supreme Court precedent compels the ruling in this case. Furthermore, even if the majority is correct that constitutional error occurred, the error is harmless beyond a reasonable doubt.

To explain my reluctance to join the majority, I must elaborate slightly on the facts. The testimony of the arresting offi *268 cer concerning Douglas’ silence after his arrest was introduced during the prosecution’s case-in-chief. However, it appears to be nothing more than an inadvertent question asked in an attempt to elicit a complete description of the event of Douglas’s arrest. The question and answer were not argued to the jury as indicative of guilt, or relied upon in any other manner by the prosecution.

After the prosecution’s case, Douglas put on a defense in which he presented an alibi to the jury. The evidence of Douglas’s ■ silence in the face of his arrest was never mentioned for impeachment purposes by the prosecution. In short, after asking the single disputed question in an unargumen-tative context, the prosecution never affirmatively incorporated the answer into either its case-in-chief or its rebuttal.

To date the case law from the Supreme…

578 F.2d 266 Gary Leroy DOUGLAS, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent-Appellee. No. 77-1265. United States Court of Appeals, Ninth Circuit. July 13, 1978. Gary L. Douglas, in pro per. Rhidian M. M. Morgan, Asst. Atty. Gen., Salem, Or., for respondent-appellee. Appeal from the United States District Court for the District of Oregon. Before SMITH, * ELY and CARTER, Circuit Judges. J. JOSEPH SMITH, Circuit Judge: 1 Gary Leroy Douglas appeals from a judgment of the United States District Court for the District of Oregon (Otto R. Skopil, Jr., Chief Judge), dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . Following a jury trial held in the circuit court for Coos County, Oregon, Douglas was convicted of burglary in the first degree. He was awarded an indeterminate sentence, the maximum term not to exceed fifteen years. 2 The Oregon Court of Appeals affirmed this conviction without opinion, 23 Or.App. 221 , 541 P.2d 833 (1975), and the petitioner did not seek review of the case in the Oregon Supreme Court. 1 Subsequently, petitioner sought, and was denied, federal habeas corpus relief. He…