St. John v. Estelle (563 F.2d 168, 1977)

BY THE COURT:

The per curiam opinion and decision of the panel of this court, dated January 3, 1977, 5 Cir., 544 F.2d 894, is adopted herewith as the opinion and decision of the en banc court.

See also Wainwright v. Sykes, -U.S. -, 97 S.Ct. 2497, 53 L.Ed.2d 594 (decided June 23, 1977).

Accordingly, the judgment of the district court in this matter is

REVERSED.

THORNBERRY, Circuit Judge, with

whom RONEY, Circuit Judge, joins specially concurring:

Only because of the intervening decision in Wainwright v. Sykes,-U.S.-, 97 S.Ct. 2497, 53 L.Ed.2d 594 (decided June 23, 1977), of which the district court did not have the benefit, do I concur in the result reached by the Court En Banc.

JAMES C. HILL, Circuit Judge,

specially concurring:

I concur in the result announced for the en banc court in the majority opinion. However, inasmuch as I feel that the court has grappled with issues unnecessary to the decision of this case, I concur without adopting all said for the en banc court.

When the question was asked by the prosecutor which elicited the fact that the petitioner-defendant had only recently returned from a stay in the state penitentiary, defense counsel’s objection was so far off the mark as to amount to no objection at all.

Nine questions later, defense counsel moved for a mistrial. No proper objection to this testimony had been stated to the trial judge and certainly not at a time when the trial judge could have protected any right of the defendant sought to be preserved. Nevertheless, on his own motion, the trial judge, in his final instructions to the jury, told the jurors that they should not consider any prior incarceration of the defendant as having any bearing on his guilt or innocence of the crime presently charged.

We are here concerned only with the constitutionality of the state court proceedings. Rose v. Hodges, 423 U.S. 19, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Smith v. Colman, 528 F.2d 1362 (5th Cir. 1976). Had defense counsel ultimately brought the objection properly to the attention of the trial court, all that the Constitution could require would have been that the testimony be stricken and the jurors properly instructed to disregard it. In the exercise of his discretion, and on his own motion, the trial judge did all that the defendant could have expected the Constitution to have required him to do.

In the case of United States v. Myers, 329 F.2d 280 (3d Cir. 1964), the Third Circuit was confronted with a factual posture nearly identical to the case at bar. In Myers, evidence of the defendant’s prior criminal record was admitted for purposes in addition to its bearing on the defendant’s credibility. The trial judge initially refused to confine the evidence to its permissible use. Later, upon reflection, he reversed his ruling and gave the jury an instruction limiting the use of the evidence to its proper purpose.

In observing that the limiting instruction cured any previous error as to the use of the evidence and in noting the absence of any fundamental unfairness, the court held that the petition “does not raise a question of constitutional dimension and is not a proper subject for relief under federal ha-beas corpus.” 329 F.2d at 284.

The instant case is more compelling in calling for reversal of the District Court for the failure of the petition to allege a claim of constitutional magnitude. Thus without evaluating the effect of the state’s “contemporaneous objection” rule and without deciding whether a “deliberate bypass,” Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), or an “inexcusable procedural default,” Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (Powell, J. concurring) occurred or whether the petition fails to show “cause and prejudice,” Wainwright v. Sykes, - U.S. -, 97 S.Ct. 2497, 53 L.Ed.2d 594 (decided June 23, 1977), I concur in the result reached by the majority.

. Q. How long had Jerry been home, Mrs. Nicholas?

A. For about a month.

Q. For about a month?

A. Yes.

Q. He arrived home sometime after April 20th, 1966?

A. He did.

Q. Where had he been?

MR. MOORE: Your Honor, we object to this unless she knows of her own personal knowledge.

THE COURT: I assume she’ll testify of her own personal knowledge.

Q. Where had he been, Mrs. Nicholas?

A. He had been in the penitentiary.

. Q. Where had he been, Mrs. Nicholas?

A. He had been in the penitentiary.

Q. He had not been at Carlsbad, then, with his father, had he?

A. Previously, he had been.

Q. He had gotten out of the penitentiary on the 20th of April, 1966—

MR. GREEN: Your Honor, the Prosecutor is testifying now.

THE COURT: It’s leading and suggestive. Q. Jerry didn’t come home until sometime after the 20th of April, 1966, is that right? A. That’s right.

Q. And he had been down to Huntsville State Prison?

A. Right.

What’s the first thing you said, Mrs. Nicholas, when the officer told you what Jerry had done?

A. He didn’t say for sure that Jerry did it. He took both of my boys’ pictures because he didn’t know who had done it.

Q. Did you bring those pictures with you today?

A. No, sir, I didn’t. He kept two of them and he brought my boy who is in the Marines picture back to me about three weeks later.

Q. I’ll ask you to look through these pictures, if you would, Mrs. Nicholas, and see if you see Jerry’s picture in any of these?

A. Yes.

Q. Which picture is this?

MR. MOORE: Your Honor, at this time, the Defense makes a motion for a mistrial due to the fact that the Prosecutor has brought out the fact that the Defendant was in the penitentiary.

THE COURT: Overruled.

. “You are instructed in this case that certain evidence was admitted before you in regard to the defendant having been convicted of an offense other than the one for which he is now on trial. You are instructed that such evidence cannot be considered against the defendant as any evidence of his guilt, if any, in this case.”

TJOFLAT, Circuit Judge,

with whom GOLDBERG and GODBOLD, Circuit Judges, join dissenting:

I

Following a not guilty plea, the petitioner, Jerry St. John, was convicted of armed robbery and sentenced to fifty years confinement in a Texas penitentiary. The state’s case hinged on the testimony of the sole eyewitness to the crime — the victim. There was no physical evidence introduced to link the petitioner to the crime.

The reliability of the victim’s identification of petitioner was seriously questioned both in cross-examination of the victim and through defense witnesses. In an attempt to bolster the state’s case against petitioner, the prosecutor set out to portray him as an ex-convict. To this end, he succeeded in establishing through his cross-examination of petitioner’s mother, Lois Nicholas, that petitioner had recently been released from a Texas penitentiary. This evidence formed the basis of the state’s closing argument, wherein the prosecutor exhorted the jury not to allow the ex-convict to go free. It is the obvious prejudice that flowed from this successful trial tactic which lies at the foundation of petitioner’s habeas corpus claim. I can find nothing in the proceedings before the jury that justified the prosecutor’s presentation of the state’s case in this way. The trial judge obviously thought it was prejudicial for petitioner to be characterized as an ex-convict; in his final charge to the jury, he sua sponte cautioned it to disregard the evidence of petitioner’s previous incarceration. No cautionary instruction was given, however, regarding the prosecutor’s repeated references, during his closing argument, to the petitioner’s prior incarceration.

This Court has repeatedly recognized the prejudice inherent in such evidence and has criticized the use of inflammatory devices such as those relied upon by the prosecutor in this case. E. g., Railton v. United States, 127 F.2d 691 (5th Cir. 1942). Railton recognized a “fundamental rule of criminal law that guilt of another offense cannot generally be proven to show guilt of the offense charged in the indictment.” Id. at 692. In Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892), Justice Harlan observed for a unanimous court that “[p]roof of [other crimes] only tend[s] to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community . . .” Id. at 458, 12 S.Ct. at 295. The prejudice to a defendant when a jury learns of his prior incarceration is a reality because “[i]t is logical to conclude, and very apt to be concluded, that because a man was dishonest once he will steal again.” Railton at 693. The due process implications of such evidentiary use are not remote. See Spencer v. State of Texas, 385 U.S. 554, 569, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (Warren, C. J., concurring in part and dissenting in part); Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).

No contention is made by the state in the case before us that the development and use of the petitioner’s ex-convict status was proper. The Texas Court of Criminal Appeals which reviewed petitioner’s conviction on direct appeal held that the fact of his incarceration was not admissible because it was not relevant to any legitimate inquiry in the case. The Texas court affirmed, however, finding that the petitioner waived this error by failing to make an appropriate objection to it at trial.

After exhausting state remedies, petitioner filed an application for a writ of habeas corpus in the Northern District of Texas. The district court concluded that it was not foreclosed from considering petitioner’s constitutional claim, found that he had been prejudiced by the introduction of the evidence of prior incarceration, and granted the writ. A panel of this court reversed the district court’s grant of the writ on the authority of Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) , which was decided after the district court’s order was entered. The en banc court has today adopted verbatim the per curiam opinion of the panel. In addition, the court cites Wainwright v. Sykes, - U.S. -, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) , which was decided by the Supreme Court after the panel decision was handed down.

II

The majority, without referring to the opinion of the Texas Court of Criminal Appeals, also found that petitioner had failed properly to object to the reception of the prejudicial evidence of recent imprisonment at the time the evidence was introduced. Then, relying on Williams and Sykes, the majority applied the Texas contemporaneous objection rule to foreclose further consideration of the merits of petitioner’s constitutional attack on his conviction in federal habeas corpus proceedings. In my opinion, neither Williams nor Sykes requires such a mechanical approach to the problem. Although these cases greatly diminish the vitality of the deliberate bypass standards of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), they do not stand for the proposition that the failure to comply with a state’s contemporaneous objection rule necessarily bars full habeas review of the petitioner’s constitutional claim. Rather, it is the extent to which the state’s rule is grounded on legitimate state interests and operates in a manner consistent with a defendant’s right to a fair trial that determines whether a federal habeas court need defer to it. Insofar as the purpose of the Texas contemporaneous objection rule is to encourage the presentation and resolution of constitutional issues at trial, it is valid. Where this purpose is nonetheless accomplished — as I believe it was in this case — a technical deviation from the rule does not give rise to the type of “inexcusable procedural default" which requires a federal ha-beas court’s abstention from reaching the constitutional claim.

The majority’s failure fully to analyze the implications of Williams and Sykes has led to two significant errors in its approach to this case. First, the majority inexplicably fails to accord any significance to the motion for mistrial, made by the petitioner shortly after the prosecutor had succeeded in placing the prejudice before the jury, other than to treat it as an isolated objection. My recital of the facts of this case and the ensuing discussion of what I see as the correct analysis will indicate that the mistrial motion carried its own procedural significance quite independent from the events which preceded it during the trial. Second, the majority’s view of Williams and Sykes demonstrates a disturbing degree of deference to a state procedural rule without regard to its underlying purposes and without determining, where it is claimed that the rule has not been adhered to, whether those underlying purposes have nevertheless been fulfilled. I believe that a fair reading of Williams and Sykes not only discourages but in fact disallows the sort of deference which the majority has accorded the Texas contemporaneous objection rule. I simply cannot square the majority’s approach to this case with what I perceive to be the analysis called for by Williams and Sykes.

Broadly stated, Williams and Sykes speak to the issue of what a federal habeas court must do when it is faced with a constitutional claim the vitality of which is drawn into question by the application of a state’s contemporaneous objection rule. To be sure, these cases acknowledge that a state’s contemporaneous objection rule may be applied to deny a petitioner, who has not complied with it, habeas review. The traditional purpose of the contemporaneous objection rule has been to implement a policy that errors occurring during the course of trial ought to be avoided by the timely presentation of objection to the trial judge in the first instance. The Supreme Court has instructed, in Williams and Sykes, that where the claim is made that the contemporaneous objection rule bars a petitioner’s right to question state trial error, the federal habeas court’s initial inquiry is to determine whether the alleged error was drawn to the attention of the trial judge in a timely fashion. If it is established that the issue was seasonably and squarely presented to the trial judge, then the rule cannot operate to bar habeas review of the petitioner’s claim. If the issue was not so presented, then the court must determine whether the petitioner has demonstrated that the error is sufficiently prejudicial to warrant a new trial and that he has good cause for not having presented a contemporaneous objection.

My opinion is that in this case the en banc court has failed to ask either of these questions. Had it done so, it would have concluded that the prejudicial evidence issue was timely and fully raised, and was in fact disposed of, at trial. Consequently, the issue is properly before this court. The purpose of this dissent is to make the inquiry mandated by Williams and Sykes; when that inquiry is concluded, it will be clear, I submit, that the writ should issue.

III

The first witness called by the defense was the petitioner’s step-sister, Sharon Nicholas. In her direct testimony she described what the petitioner was wearing on the morning of the robbery. Her description conflicted with the one established in the state’s case. Although this was the focus of her testimony, the seventh question posed by the prosecutor in cross-examination was “[h]ow long had Jerry been living at the house on Statler Street?”, to which the witness replied, “[f]or a little over a month, I think.” The following exchange proceeded:

Q. In other words, he had only been home about a month, is that correct?

A. Yes, sir.

Q. How long had Jerry been gone from home? (R. 34).

At that point defense counsel objected to the line of questioning as being irrelevant-having no bearing on the case. The objection was overruled and defense counsel asked the judge to note his exception. The examination continued:

Q. How long had Jerry been gone from home, Sharon?

A. I don’t know exactly how long. He had been staying with his father in Carlsbad, New Mexico.

Q. Is that Carlsbad, New Mexico?

A. That’s right.

Q. He’d been with his father?

A. Uh-huh.

* * * * * *

Q. I’m not talking about his name now, but I’m talking about the fact that Jerry was staying with him, or did someone tell you that that’s where Jerry was staying?

A. Well, that’s what I knew.

Q. Did your mother tell you that was where Jerry was staying, Sharon?

A. That’s what she told me when Jerry wasn’t there.

Q. That’s right. Whenever Jerry wasn’t home, your mother told you that he was staying with his dad out in Carlsbad, isn’t that correct?

A. That’s right.

Q. You never went out to Carlsbad to see him with his dad, though, did you?

A. No.

Q. Jerry hasn’t lived at home much, has he, Sharon?

A. Well, when we lived out in Snyder, Texas, he lived there with us for awhile and then he went to see his father. (R. 34-36).

* * * * * *

Thus, the court permitted the prosecutor to pry into the petitioner’s whereabouts during the period of time the prosecutor knew the petitioner was in prison. It was at this point in the trial that the prosecutor began his deliberate efforts to expose the fact that the petitioner had recently been incarcerated.

The defense next called the petitioner’s mother, Lois Nicholas. She testified that, to her knowledge, the petitioner did not possess clothing similar to that which the state claimed was worn by the robber. She also revealed various economic resources available, to her son, thus rebutting the state’s asserted motive behind the robbery (I. e., the petitioner’s need of immediate funds at the time of the robbery). On cross-examination, the prosecutor promptly resumed his strategy of uncovering the fact of petitioner’s recent incarceration by inquiring as to the petitioner’s whereabouts at the time he was in the penitentiary. The first question posed in the prosecutor’s cross-examination was “[h]ow long had Jerry been home, Mrs. Nicholas?” This exchange followed:

A. For about a month.

Q. For about a month?

A. Yes.

Q. He arrived home sometime after April 20th, 1966?

A. He did.

Q. Where had he been? (R. 44). Defense counsel immediately objected to the question on hearsay grounds. The objection was overruled and the prosecutor continued:

Q. Where had he been, Mrs. Nicholas?

A. He had been in the penitentiary.

Q. He had not been at Carlsbad, then, with his father, had he?

A. Previously, he had been.

Q. He had gotten out of the penitentiary on the 20th of April, 1966—

MR. GREEN: Your Honor, the Prosecutor is testifying now.

Q. Jerry didn’t come home until sometime after the 20th of April, 1966, is that right?

A. That’s right.

Q. And he had been down to Huntsville State Prison?

A. Right.

Q. What’s the first thing you said, Mrs. Nicholas, when the officer told you what Jerry had done?

A. He didn’t say for sure that Jerry did it. He took both of my boys’ pictures because he didn’t know w