Barnard v. Henderson

• Citation: 514 F.2d 744
• Decision Date: 12 June 1975
• Docket Number: No. 74-2894,74-2894
• Parties: Larry K. BARNARD, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 744

514 F.2d 744

Larry K. BARNARD, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

No. 74-2894.

United States Court of Appeals, Fifth Circuit.

June 12, 1975.

Raymond D. Fuljenz, Lake Charles, La., for petitioner-appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, La., Barbara B. Rutledge, Asst. Atty. Gen., New Orleans, La., Frank T. Salter, Jr., Dist. Atty., 14th Judicial Dist. Crt., Charles W. Richard, Asst. Dist. Atty., Lake Charles, La., for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, Chief Judge, and GODBOLD and CLARK, Circuit Judges.

BROWN, Chief Judge:

In this appeal of a habeas denial Larry Barnard attacks his Louisiana murder conviction because a witness with crucial testimony on his behalf was excluded due to her inadvertent violation of the rule regarding sequestration of witnesses and because he was denied the opportunity to have his own ballistics expert examine the alleged murder weapon. We reverse.

Barnard was convicted by a jury of the April 6, 1972 murder of Rex Emile Lanier. The Supreme Court of Louisiana affirmed. State v. Barnard, La., 1973, 287 So.2d 770. At the trial Kenneth Hooper, the bouncer at Rick's Place, a Lake Charles, Louisiana lounge, testified that Lanier and Barnard had an argument about an automobile in the lounge the night before the murder and Barnard threatened to kill Lanier.

The State relied heavily on this testimony to show Barnard's intent. In direct contradiction to Hooper's testimony, the lounge's bartender and manager, Gay McPayne, stood ready and as her affidavit attests still stands ready (Petr's Ex. # 3) to testify Barnard never came into Rick's Place at all the night the argument was said to have taken place. The jury never heard this testimony.

On the opening day of the trial defense counsel invoked the rule regarding sequestration of witnesses familiarly known as the "rule". McPayne missed this first day of the trial due to illness. Her absence was unnoticed. Unaware of the strictures of the rule, she entered the courtroom on the third morning of the trial and was present for about 15 minutes of testimony before a recess was had and her presence was discovered. When the defense attempted to call McPayne to testify, the prosecution objected that she had violated the rule. The Court sustained the objection and she was not allowed to testify.

In Holder v. United States, 1893, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010, the Supreme Court held that although generally a witness may not be disqualified for disobeying the rule, the trial court may under "particular circumstances" exclude him within its sound discretion. We defined these "particular circumstances" in Braswell v. Wainwright, 5 Cir., 1972, 463 F.2d 1148, 1154 to be the "knowledge, procurement, or consent" of the defendant or his counsel. A similar approach has been taken in other Circuits. United States v. Kiliyan, 8 Cir., 1972, 456 F.2d 555; Taylor v. United States, 9 Cir., 1967, 388 F.2d 786; United States v. Schaefer, 7 Cir., 1962, 299 F.2d 625, cert. denied, 370 U.S. 917, 82 S.Ct. 1553, 8 L.Ed.2d 497. It is undisputed that McPayne's violation of the rule was inadvertent and not done with the "knowledge, procurement, or consent" of Barnard or his counsel.

Nevertheless, the District Judge in denying Barnard's habeas petition ruled that the Braswell test was not applicable because McPayne's testimony was merely cumulative of that of her husband who also testified that he had heard no argument between Lanier and Barnard in the lounge that night. We disagree. Mr. McPayne stated that he did not arrive in Rick's Place until 10:00 that evening. Hooper testified that the argument took place between seven and nine o'clock. The jury would clearly have been justified in coming to the conclusion that the reason Mr. McPayne did not see the argument was not because it never occurred but rather because it took place before he arrived. Mrs. McPayne, on the other hand, was in the lounge the whole evening and would testify that she could not have missed the argument if it took place. The exclusion of this testimony very clearly prejudiced Barnard. Whether it would be sufficient to tip the constitutional scales were it standing alone we need not decide. Together with the ballistics problem we next discuss we could not approve such exclusion on any retrial.

Barnard's second contention also has merit. Prior to the trial he moved for permission of the Court to allow inspection of the murder weapon and bullet by a ballistics expert of his own choosing. That this was not a frivolous request is evident since one of the most damaging pieces of evidence against Barnard was the...