621 F.2d 769 (5th Cir. 1980), 79-3100, Meyer v. Estelle

Docket Nº:79-3100
Citation:621 F.2d 769
Party Name:Gene Olwyn MEYER, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
Case Date:July 16, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 769

621 F.2d 769 (5th Cir. 1980)

Gene Olwyn MEYER, Petitioner-Appellant,

v.

W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent-Appellee.

No. 79-3100

[*]

United States Court of Appeals, Fifth Circuit

July 16, 1980

Page 770

Gene Olwyn Meyer, pro se.

P. E. George, Austin, Tex., for respondent-appellee.

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

Before BROWN, TJOFLAT and FRANK M. JOHNSON, Jr., Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Meyer appeals the denial of his 28 U.S.C.A. § 2254 petition for habeas relief. Following a prosecution resulting in a hung jury, Meyer was retried and convicted by a Texas State Court of the May 6, 1966 robbery by assault of a Shell Oil Company service station. Enhanced by two prior felony convictions, he received a life sentence as an habitual offender. His conviction was affirmed on appeal. Meyer v. State, 416 S.W.2d 415 (Tex.Cr.App. 1967). He exhausted his state remedies and filed the instant action. After an evidentiary hearing at which he appeared pro se, the magistrate recommended that Meyer be denied relief and the District Judge agreed. On this appeal, Meyer reasserts five grounds for relief: (i) he was charged by a defective indictment; (ii) the fruit of an illegal search was admitted at trial; (iii) speculative evidence lacking a proper foundation was admitted against him at trial; (iv) the prosecutor

Page 771

made improper remarks; and, (v) the pre-trial identification procedure used was fatally defective. We find Meyer's grounds lacking and affirm.

We do not dally over issues (i) and (ii). The state indictment incorrectly listed the night manager of the service station rather than Shell Oil Company as the owner of the money stolen. That mistake was not "so fatally defective as to deprive the convicting court of jurisdiction," and is therefore not a basis for federal habeas relief. Murphy v. Beto, 416 F.2d 98, 100 (5th Cir. 1969).

Second, a marine battery found in Meyer's automobile was admitted at trial. The battery and a rifle were items taken in a burglary prior to the service station robbery. The rifle was used in the service station robbery and afterwards was sold by an associate of Meyer. The battery was admitted in order to connect Meyer with the rifle. However, Meyer's claim that the battery was the fruit of an illegal search of his automobile was not made at the time of its admission in the state trial court. Texas requires that a defendant make a contemporaneous objection in order to preserve a question for review. E. g., Aldrighetti v. State, 507 S.W.2d 770 (Tex.Cr.App. 1974). Meyer has not shown any cause for failure to object although there might be some actual prejudice resulting from admission of the evidence. Under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and Jiminez v. Estelle, 557 F.2d 506 (5th Cir. 1977), the unexcused failure to comply with the Texas contemporaneous objection rule forecloses habeas relief on this claim.

Meyer's next two claims ((iii) and (iv)) involve evidence admitted against him and allegedly improper remarks made by the prosecutor at trial. We have repeatedly held that our constitutional review of the conduct of a state trial is limited to ascertaining that it was not fundamentally unfair. The trial may pass constitutional muster even though we would not approve such conduct on direct appeal of a federal trial. "(W)e do not sit as a 'super' state supreme court." Martin v. Wainwright, 428 F.2d 356, 357 (5th Cir. 1970); Alvarez v. Estelle, 531 F.2d 1319, 1322 (5th Cir. 1976), cert. denied, 429 U.S. 1044, 97 S.Ct. 748, 50 L.Ed.2d 757 (1977); Cronon v. State of Alabama, 587 F.2d 246, 250 (5th Cir. 1979).

We have no qualms about Meyer's claim that photographs of tire and foot prints from the scene of the robbery should not have been admitted. Whether those prints were connected with Meyer was vigorously argued at trial and decided adversely to Meyer by the jury. In particular, the tire tracks were of an unusual configuration matching that of the tires on Meyer's automobile. We perceive no error in admitting the evidence, much less error of constitutional apogee.

Our evaluation of the prosecutor's allegedly improper remarks requires a brief review of the facts of the robbery. The service station was robbed during the early morning by a robber "disguised" by large dark glasses. Only the night manager was on duty and there were no customers at the time. A getaway vehicle was parked nearby but sufficiently far away so that it could not be easily identified. The robber attempted to jerk the pay phone from the wall in order to prevent the attendant from calling the police after the robbery. A 30.30 rifle was used.

Meyer first complains of six instances during the final closing argument in which the prosecutor described the robbery as a professional one and Meyer as the professional who engineered it. 1 Both on direct

Page 772

appeal and here, Meyer argues that the prosecutor was impermissibly making reference to his prior criminal convictions. Read with blinders, two of the seven remarks do suggest that the prosecutor was attempting to inform the jury of Meyer's criminal record: "This is not a case where a first offender drives up to a service station, jumps out of the car and runs in with a gun and takes all of the money;" and "He is not like a high school boy that suddenly has to have some money and drives up in front of a service station . . . and takes the money and flees the first offender but this one shows marks of planning." (Emphasis supplied). But in each of these two instances the prosecutor tied his remarks to the modus operandi of the robber. Moreover, the other four "professional" references were similarly tied to the facts of the robbery, and the first was specifically prefaced with the statement " this is argument ."

We agree with the Texas Court of Criminal Appeals that the prosecutor's remarks taken as a whole were more likely interpreted by the jury as permissible logical inferences from the facts of the robbery. Meyer v. State, supra, 416 S.W.2d at 416. The theme was that from the manner in which the robbery was carried out it had the earmarks of one planned by one experienced in such activities. If this rubbed off to suggest that one who does the task professionally is a professional it was a fair inference, not one seeking to condemn the defendant because he may have been a professional crook. The Trial Judge also twice cautioned the jury that the prosecutor's "professional" remarks were not to be treated as evidence. The remarks were at most a very indirect reference to Meyer's criminal record and are totally different from the direct, unveiled, and unambiguous remarks in Nero v. Blackburn, 597 F.2d 991, 994 (5th Cir. 1979). Consequently, we find that the prosecutor's "professional" remarks did not render the trial fundamentally unfair.

The second type of allegedly improper remark occurred also during the prosecutor's

Page 773

final closing argument. Meyer contends that the prosecutor prejudiced his constitutional privilege against compulsory self-incrimination by commenting on Meyer's failure to testify, contrary to Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). We must take "special care to assure that prosecutorial conduct in no way impermissibly infringes . . . " on Meyer's privilege against self-incrimination. Donnely v. De Christoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431, 437 (1973).

The alleged Griffin remark occurred towards the end of the prosecutor's rather lengthy argument. Near the beginning of the argument, the prosecutor attempted to answer the insinuation 2 by Meyer's lawyer, Mr. Jones, that Meyer had stated his innocence to the lawyer. The prosecutor permissibly argued:

"You notice that the testimony for the defendant in this case comes basically from Mr. Jones standing up here talking to you. Mr. Jones is the one who tells you that the identification was two seconds. Now, Mr. McCray on the witness stand never said anything about two seconds; that's Mr. Jones' testimony . . .

"Mr. Jones didn't take the witness stand and wasn't sworn, simply because he wasn't out there and was not a personal witness, but that is a legitimate tactic of a defense lawyer, to draw his conclusions from the facts, and his conclusion is that Mr. McCray couldn't have seen this defendant but two seconds and therefore, Mr. Jones tells us, 'two seconds,' and over and over he says 'two seconds' until when you get back to the jury room, you believe that Mr. McCray admitted it was only two seconds that he saw him. That didn't happen. He saw him the full time that he was out there."

(Emphasis supplied). Returning to this theme toward the end of his argument, the prosecutor stated to the jury:

Now, Ladies and Gentlemen of the Jury, this is an open and shut case. There is no question about it. The only questions are the insinuations that a brilliant defense attorney makes. He makes the insinuation that this Defendant has told him that he wasn't guilty, but he won't take the stand under oath and tell you that.

It is this last...

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