Bass v. Estelle

• Decision Date: 04 February 1983
• Docket Number: No. 82-2341,82-2341
• Citation: 696 F.2d 1154
• Parties: Charles William BASS, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1154

696 F.2d 1154

Charles William BASS, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent-Appellee.

No. 82-2341.

United States Court of Appeals, Fifth Circuit.

Feb. 4, 1983.

Will Gray, Simonton, Tex., Stanley Schneider, Houston, Tex., Stefan Presser, ACLU, Houston, Tex., for petitioner-appellant.

Leslie A. Benitez, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before GOLDBERG, GEE and HIGGINBOTHAM, Circuit Judges.

GEE, Circuit Judge:

In 1979 Appellant Bass murdered a uniformed police officer who, having caught Bass red-handed with loot from a bar robbery that he had just committed, was attempting to apprehend him. His state conviction and death sentence were confirmed on direct appeal. Bass v. State, 622 S.W.2d 101 (Tex.Cr.App.1981), cert. denied --- U.S. ----, 102 S.Ct. 2046, 72 L.Ed.2d 491 (1982). Bass then exhausted state habeas remedies as to the points presented here, his application for the writ being dismissed without hearing. His petition to the court below suffered the same fate, and he appeals to us asserting several points.

Witherspoon and Waiver

Bass asserts that one member of the venire, Mrs. Marian Hall, was improperly excused under the dictates of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Such determinations are often difficult ones, and that as to Mrs. Hall falls in this category. Her testimony paints the picture of an educated, intelligent woman of strong character, anxious to perform her civic duty of jury service but harboring deeply-seated scruples against the death penalty. Even so, she stated at one point that she believed she could follow the law and at another that she could assess the penalty "if there's no other way to make sure they are not back on the streets." In the end, however, she stated that she would be unable to take the required oath that the mandatory penalty of death occasioned by giving affirmative answers to a triad of questions required by Texas law that the prospect of the death penalty would not affect her deliberations on any issue of fact. After she had done so, the court sustained a challenge for cause.

Were we required to reach a final conclusion, we might incline to the view that her dismissal was improper. Since, however, we do not wish to add further precedent to the burgeoning common law of Witherspoon and since we conclude we are not required to do so, we shall assume, without deciding, that it was. But since we also conclude that Bass's admitted failure to object to her dismissal waived the point, a decision of the Witherspoon issue is unnecessary to disposition of his appeal.

It is settled law that such a state prisoner as Bass, barred by procedural default from raising a constitutional claim on direct appeal, cannot do so in a federal habeas proceeding without demonstrating both cause for the default and actual prejudice resulting from it. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Texas procedure requires a contemporaneous objection to the exclusion of a venireman on pain of waiver of the point. Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976), cert. denied, 430 U.S. 959, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977). None was made by Bass to the dismissal of Mrs. Hall from the venire. On these facts, the state contends that whether or not Mrs. Hall was properly excused is not before the court, the point having been waived.

Bass advances several arguments to the contrary. The first of these, serving as a sort of preparatory artillery barrage for his more specific attacks and reiterated at various points throughout his general presentation, consists of variations on the "death is different" theme. Citing several expressions of the Supreme Court and others emphasizing the seriousness with which capital cases are to be regarded and reviewed, ¹ Bass suggests that there are what amount to two procedural systems for review of criminal cases: one for those in which capital sentences have been imposed, another for the rest. Implicit throughout his arguments, the suggestion becomes explicit in his treatment of Engle v. Isaac, --- U.S. ----, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), discussed below. Since the suggestion is merely general and implicit, we treat it in the margin. ²

In Engle v. Isaac, supra, the Supreme Court considered whether a colorable constitutional claim--that due process requires proof of a negative, the absence of self defense, when that defense negates an element of the crime charged--was preserved for review where the requisite contemporaneous objection was not made. Citing the costs to society and to our federal system of permitting such disregard of state procedures and safeguards, the Court declined to make an exception for any constitutional claim whatever to the rule of Wainwright v. Sykes, supra. ³ The breadth of the Court's language--"a constitutional claim"--renders unnecessary an analysis by us of petitioner's arguments that Witherspoon contentions cannot, per se, be waived. We are bound to follow the law of the Court; if exceptions are to be made to rules stated in such terms by the Court, it is for the Court to make them, not for us.

Sykes and Engle, however, recognize that waiver can be avoided by a showing of "cause" and "prejudice"; and Bass argues that "cause" existed in his case. This is said to be so because at the time of his trial the state court system of Texas failed properly to understand and apply Witherspoon and hence any objection would have been meaningless. A very similar suggestion was, however, squarely rejected in Engle. Witherspoon v. Illinois, decided in 1968, long antedated petitioner's trial in 1980, so that the basis of the contentions successfully made in Adams v. Texas, 448 U.S. 38, 39, 100 S.Ct. 2521, 2523, 65 L.Ed.2d 581 (1980)--the same contentions that counsel alludes to here--was apparent and available. Petitioner's contention to us therefore goes down before the specific language of Engle:

Where the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labelling alleged unawareness of the objection as cause for a procedural default.

--- U.S. at ----, 102 S.Ct. at 1574, 71 L.Ed.2d at 804.

We hold that petitioner's Witherspoon objection to the discharge of Mrs. Hall was waived. ⁴ An objection to the discharge of a venireman is little to require; to hold otherwise would open the discharge of every venireman, objected to or not, in such cases as this--where the venire examination consumed over two-thirds of the 3000-page record--to examination on appeal. We cannot countenance such ambushing of state processes.

The Refusal to Discharge Juror Turner

About a month after being selected as the fourth juror, and before trial commenced, Juror Marilyn Turner awakened to find a knife-bearing intruder in her bedroom. Shaken by this experience, she approached the court, seeking to be excused from jury service because of doubts about her impartiality, distraction resulting from her fright, and inability to concentrate. ⁵ At a hearing held by the court she testified to her agitated state, extending even to physical symptoms such as nausea and sleeplessness. She also testified, however, that she was willing to do her civic duty and that she would do her best to follow the court's instructions on the law. Bass refused to consent to her release unless he was granted additional peremptory challenges, his having been exhausted. The trial court declined to do so or to discharge her, and the Texas Court of Criminal Appeals agreed. 622 S.W.2d at 104-107. Before us, Bass claims that these determinations violated his constitutional rights to due process and an impartial jury.

We reject these contentions. The trial court concluded that Ms. Turner was neither disabled nor biased against Bass. Both in the Texas system and in ours, such determinations, even on direct appeal, are reviewed for abuse of discretion only. Bass v. State, 622 S.W.2d 101, 106-7 (Tex.Cr.App.1981); United States v. Horton, 646 F.2d 181, 188 (5th Cir.1981). Before us, such determinations by state tribunals are, in the absence of exceptions not asserted here, endowed with a presumption of correctness. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The trial court both heard and saw the manner of Ms. Turner's testimony. We discern no abuse of its discretion. ⁶

Refusal of Continuance for New Counsel

Two days before trial, Bass sought permission of the court to dismiss his court-appointed counsel and for a continuance to permit his representation by new counsel from Alabama, counsel who knew nothing of the case and were just commencing a lengthy trial in Georgia. Bass's case had been set for trial for two months. His stated ground was a sudden loss of personal confidence in his appointed counsel and a desire for new ones specializing in "death cases." After hearing argument, the court refused these requests. Bass asserts that by so doing the court denied him effective assistance of counsel. We disagree, finding a complete answer to the contention in the language and authorities cited in United States v. Silva, 611 F.2d 78, 79 (5th Cir.1980):

On the day before trial defendant made an oral motion for continuance, informing the district court he wished to substitute retained counsel for court-appointed counsel. Denial of defendant's motion did not deny defendant his Sixth Amendment right to counsel, since there is no absolute and unqualified right to counsel of choice, even where counsel is retained. United States v. Brown, 591 F.2d 307, 310 (5th Cir.), cert. denied, 442 U.S. 913, 99 S.Ct. 2831, 61 L.Ed.2d 280 (1979). The freedom to have co...