Bowles v. State of Texas

• Decision Date: 19 September 1966
• Docket Number: No. 22939.,22939.
• Citation: 366 F.2d 734
• Parties: Bryant Williams BOWLES, Jr., Appellant, v. The STATE OF TEXAS, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

366 F.2d 734 (1966)

Bryant Williams BOWLES, Jr., Appellant, v. The STATE OF TEXAS, Appellee.

No. 22939.

United States Court of Appeals Fifth Circuit.

September 19, 1966.

Clyde W. Woody, Marian S. Rosen, Houston, Tex., for appellant.

Howard M. Fender, Asst. Atty. Gen., Austin, Tex., Sam R. Wilson, Thomas H. Routt, Asst. Attys. Gen., Houston, Tex., for appellee.

Before GEWIN and THORNBERRY, Circuit Judges, and WEST, District Judge.

GEWIN, Circuit Judge:

Appellant, Bryant W. Bowles, Jr., was convicted in August of 1958 of the murder of his brother-in-law, Earl Harvey. He was sentenced by the District Court of Hardin County, Texas, to confinement in the state penitentiary for life. He filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Texas, in June of 1964. After a full hearing, at which appellant was represented by counsel, the petition was denied. A certificate of probable cause was issued by this Court, and this appeal is prosecuted pursuant to 28 U.S.C. § 2253.

The appellant makes three basic contentions: (1) the sheriff's continual and intimate contact with the jury during his trial deprived him of his right to an impartial and unbiased jury, Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424; (2) the district attorney suppressed evidence favorable to him; and (3) he was denied his right to the effective assistance of his chosen counsel when the state court denied a motion for a continuance predicated, in part, on his counsel's alleged ill health. After a full and complete study of the entire record, giving careful consideration to the evidence presented at both the district court hearing and the state court proceedings, we find the appellant's contentions to be without merit. Accordingly, we affirm the judgment of the district court.

On May 3, 1958, the day before his death, the deceased had engaged in an altercation with the appellant's wife. During the difficulty, he slapped her soundly and manhandled her in such a way as to cause several bruises on her arm. Through Mrs. Bowles, he also challenged the appellant to meet him, asserting that he was not afraid of the appellant and had wanted to get ahold of him for some time. At the time of this difficulty between decedent and Mrs. Bowles both knew that appellant was in Chicago on business. Mrs. Bowles telephoned her husband and he returned to Texas the following day. After talking with his wife, appellant took his shotgun, because he contended Harvey always carried a knife, and went to the home of the deceased. Shortly thereafter he shot Harvey on the porch of Harvey's home. The state alleged, and the jury found, that the murder was intentional. The appellant maintained that he acted in self-defense since he believed Harvey was moving to get a gun. The judgment of conviction was affirmed by the Court of Criminal Appeals of Texas. Bowles v. State, 168 Tex.Cr.R. 241, 324 S.W.2d 841 (1959).

We observe at the outset that this case presents a tragic occurrence arising out of a family dispute or controversy. The decedent and the defendant married sisters. The murder resulted from a heated confrontation arising out of that dispute. We thoroughly agree with the statement of the District Court that the sentence imposed "was severe". Indeed, it was inordinately severe in light of the facts and circumstances under which the crime was committed.¹ It is not the function of this Court, however, to vacate state convictions on the mere suspicion of impropriety, nor to pass on the suitability of the sentence, provided the defendant's constitutional rights have been adequately protected.

I

The original trial in the state court lasted for some seven days, extending over a weekend. The jury was confined during the entire period. Under state law, the sheriff's duties included acting as bailiff in criminal cases. Except when they were in the courtroom or deliberating, the sheriff or his deputies were in attendance upon the jury at all times.² The member of the sheriff's force who took them out to meals, or escorted them in and out of the courtroom depended on the non-judicial work schedules of the various members of the staff. As a necessary consequence, the sheriff came into contact with the jury on several occasions during the long trial. It was inevitable that he do so. Nevertheless, the district court found that the deputies supervised the jury the greater part of the time. We conclude, therefore, that the sheriff's role in the appellants' trial was not sufficient in the circumstances here presented to bring this case within the applicable principles of Turner.³ Assuming, but not deciding, that the sheriff's contacts were too continuous and intimate under the teachings of Turner, we find that his testimony was not sufficiently vital to the state's case to invalidate the conviction.

In Turner the offending deputies were the investigating officers; they were the officials who apprehended Turner, and took his confession. They corroborated that confession at the trial, and it was on the basis of their testimony that the court and the jury found the confession voluntary. The weight and significance which the jury accorded their testimony were important and determining factors in their decision to convict or acquit. See also McAllister v. Allgood, 249 F. Supp. 408 (E.D.La.1966). The testimony of the sheriff in this case did not assume the importance or indispensability in the state's case as did the testimony of the officers in Turner.

Indeed, the evidence clearly supports the finding of the District Court that there was no serious contradiction between the sheriff's testimony and the appellant's position and contentions. Aside from the formal plea of not guilty, the appellant did not contest the killing; he relied on self-defense. He freely admitted that he gave the gun to the sheriff and that he showed the sheriff where the spent shell casing could be found. The sheriff's testimony otherwise dealt with perfunctory matters entirely — the size and location of the wound, the location of the body, and the time at which the killing was reported. All these facts were corroborated by other witnesses, and were not seriously contested by the appellant. The res gestae statements to which the appellant attaches much importance were of little consequence in terms of the issues raised in this case. The scant testimony as to res gestae statements was uncontroverted, and was not unfavorable to the appellant. Although the sheriff's testimony as to the position of the body did not agree exactly with other testimony,⁴ it is difficult to see how that variance had any effect on the jury's verdict.

It is fundamental that an impartial and unbiased jury is absolutely essential to our system of jurisprudence. A jury that is free from influences outside the courtroom is essential to a fair and impartial trial. As stated in Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751:

"In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent\' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process."

This protection against external and unwarranted contact with the jury has been zealously guarded by our courts. Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892); Pekar v. United States, 315 F.2d 319 (5 Cir. 1963); Ryan v. United States, 89 U.S. App.D.C. 328, 191 F.2d 779 (1951). Cf. United States v. Harry Barfield Co., 359 F.2d 120 (5 Cir. 1966). But as noted by the late Judge Learned Hand in United States v. Compagna (2 Cir. 1945) 146 F.2d 524, 528, it is "* * * like other rules for the conduct of trials, it is not an end in itself; and, while lapses should be closely scrutinized, when it appears with certainty that no harm has been done, it would be the merest pedantry to insist upon procedural regularity." No less a requirement exists when invoking constitutional sanctions against an otherwise regular state court conviction.⁵ Turner v. State of Louisiana does not espouse a more stringent test.

In Texas, as in many states, the sheriff's department performs both the function of bailiff, and the role of investigator. In this latter capacity, the sheriff or a member of his staff necessarily must testify for the state. Frequently, however, the testimony deals only with the formal aspects of the case, and, as is true in this case, is not substantially controverted. In rural areas, almost necessarily, this same officer will come in contact with the jury in the normal course of a trial. It is often his duty to escort the jury to meals and to stand guard during their deliberations. To assert that Turner requires the invalidation of all convictions in which such formal testimony was used is too narrow a construction of its teachings and rationale. The dual role which the sheriff's duties sometimes require of him presents an ever-present and inherent danger of running afoul of the strictures of Turner and should be avoided when possible. However, the mere existence of contact between the sheriff and the jurors resulting from the performance of perfunctory duties required by law and the orderly conduct of court is not sufficient in and of itself to invalidate the conviction. We find that the performance by the sheriff of his judicial administrative functions required by state law in the circumstances and under the facts presented in this case does not require the invalidation of the conviction. We are in agreement with the findings and conclusions of the District Court.

II

Appellant next complains of the failure of the prosecution to utilize a subpoenaed witness and contends that the testimony of the witness would have been favorable to him.⁶ The district court found that the state had no knowledge of the alleged evidence, and further that the alleged testimony was...