Bradley v. State of Texas, 72-1218.
| Decision Date | 10 January 1973 |
| Docket Number | No. 72-1218.,72-1218. |
| Citation | 470 F.2d 785 |
| Parties | Susie BRADLEY, Petitioner-Appellant, v. STATE OF TEXAS, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Sam R. Wilson, Houston, Tex., for petitioner-appellant.
Crawford Martin, Atty. Gen., Lonny Zwiener, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before GEWIN, THORNBERRY and CLARK, Circuit Judges.
This is an appeal from the district court's denial of appellant's petition for writ of habeas corpus. We affirm.
Appellant is a Texas prisoner who was convicted and sentenced to ten years' imprisonment for aiding and abetting one Donald McGaha in the fatal shooting of her husband. In an opinion that disposed of all but one of the alleged errors that appellant presented to the court below,1 the Texas Court of Criminal Appeals affirmed the conviction. Events transpiring subsequent to this affirmance formed the basis for a petition for rehearing in that court, alleging that appellant had been convicted on the basis of perjured testimony of the prosecution's chief witness, Donald McGaha. This petition for rehearing was denied without opinion. Appellant then applied for habeas corpus relief in the court below, which suspended proceedings to enable her to seek relief in the Texas courts. The convicting court conducted an evidentiary hearing limited to the alleged use of perjured testimony and the trial judge's allegedly erroneous refusal to include a transcript of the voir dire examination in the record on appeal to enable appellant to substantiate her claims of wrongful inclusion and exclusion of women from the jury venire. The state court denied relief in an order affirmed without opinion. Thereupon, without holding an evidentiary hearing, the court below also denied relief; and this appeal followed.
With a few exceptions, appellant's allegations of errors committed by the state trial court are wholly without merit, and the court below was well within the bounds of its discretion in adopting the comprehensive opinion of the Court of Criminal Appeals in lieu of holding an evidentiary hearing. McDonald v. Beto, 5th Cir. 1969, 405 F.2d 884. We therefore turn to appellant's more substantial contentions.
The most serious of these is that she was denied due process because the state trial judge permitted extensive still and motion picture photography of the trial proceedings. The facts surrounding this claim are much in dispute. The record reflects that after considerable testimony had been taken, appellant objected to the presence of photographers while the court was in session. The court sustained this objection, and appellant did not object further. Appellant contends that photography continued after her objection was sustained; but the trial judge, in his qualifications to appellant's formal bill of exception, stated that he did not allow any photography after appellant's objection except during recesses when pictures of appellant and her attorney were taken with their permission, and that all photography occurring prior to appellant's objection had been conducted in an orderly, unobtrusive manner. On the basis of these conflicting claims, the Court of Criminal Appeals concluded that the situation at trial did not approach the "Roman holiday" atmosphere of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), and that it was not inherently lacking in due process under Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). The court below approved this holding after reviewing the record before it, which apparently included some of the photographs taken at trial.2
We approach with great care appellant's contention that she was denied due process by the trial court's permitting motion picture and still photography of the proceedings, for such practices are widely disfavored. Television coverage of a trial is considered inherently prejudicial, even absent a showing of actual harm to the defendant. Estes, supra. That rule reflects some considerations that apply with equal force here. Not only may still and motion picture photography have unfavorable psychological effects on the participants in a trial, see Estes, supra, but the mere presence of photographers and photographic equipment may destroy the atmosphere necessary to decide the fate of an accused.3
Bearing these factors in mind, we are nevertheless compelled to reject appellant's contention. Resolution of this question depends largely on proof of what took place at the trial, cf. Nichols v. Henderson, 6th Cir. 1968, 389 F.2d 990, cert. denied, 393 U.S. 955, 89 S.Ct. 384, 21 L.Ed.2d 366 (1968). Even though the methods of proof available to appellant on appeal to the Court of Criminal Appeals were relatively restrictive (bill of exception with trial judge's qualification; bystanders' bills, containing affidavits of disinterested lay observers), and even though the courtroom photography claim has not been the subject of an evidentiary hearing in any court, we do not believe that a remand for an evidentiary hearing would produce any more reliable and complete a record of the events at trial than has already been considered by both the Court of Criminal Appeals and the court below. We are unable to say that the conclusions of either court are clearly erroneous, and thus turn to a consideration of appellant's contention that she was convicted on the perjured testimony of Donald McGaha.
At appellant's trial, McGaha testified in detail that he had shot appellant's husband at her encouragement and with her aid. He denied that he had been promised anything by the State in return for his crucial testimony — "not even so much as a cold drink of water." After McGaha's subsequent conviction and imprisonment for this murder, he volunteered to appellant's counsel a sworn statement that his testimony at her trial had been false, including his denial that his testimony had been given in exchange for a promise of leniency. McGaha subsequently executed a second affidavit re-affirming the truthfulness of his testimony at trial and denying the truthfulness of the first affidavit. In the state district court habeas hearing, McGaha was questioned at length by both sides, and steadfastly maintained that his trial testimony had been true.
Relying on Green v. State, 94 Tex.Cr. R. 637, 252 S.W. 499 (1923), McConnell v. State, 82 Tex.Cr.R. 634, 200 S.W. 842 (1918), and Wadkins v. State, 102 Tex. Cr.R. 292, 277 S.W. 684 (1925), appellant contends that McGaha's executing the first affidavit contradicting his trial testimony required giving her a new trial.
None of the cases cited by appellant is in point, because none deals with a recanting witness who subsequently withdraws his recantation and reaffirms the testimony he gave at trial. On the other hand, this court has dealt with this set of facts in many cases presenting the analogous situation of appeals from orders denying motions for new trial based on recantation by prosecution witnesses. See, e. g., United States v. Nolte, 5th Cir. 1971, 440 F.2d 1124; United States v. Smith, 5th Cir. 1970, 433 F.2d 149; Ledet v. United States, 5th Cir. 1962, 297 F.2d 737; Newman v. United States, 5th Cir. 1956, 238 F.2d 861. We have held consistently that a new trial is not warranted when the substance of the recantation has been thoroughly discredited. As in Smith, supra, it is obvious that McGaha's second affidavit and his testimony at the state district court habeas hearing removed any firm basis for doubting the truthfulness of his testimony at appellant's trial.
We likewise reject appellant's contentions that women with children under age eighteen were discriminatorily excluded from the venire, and that a Mrs. Hilliard, whom the jury commissioners considered "intelligent and responsible," was wrongfully included. At the hearing on appellant's motion to quash the venire, one of the jury commissioners testified that women were selected...
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