Braswell v. Wainwright, 71-2836.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTUTTLE, GEWIN and THORNBERRY, Circuit
Citation463 F.2d 1148
PartiesMason BRASWELL, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellant.
Docket NumberNo. 71-2836.,71-2836.
Decision Date07 July 1972

463 F.2d 1148 (1972)

Mason BRASWELL, Petitioner-Appellee,
Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellant.

No. 71-2836.

United States Court of Appeals, Fifth Circuit.

July 7, 1972.

463 F.2d 1149

Robert L. Shevin, Atty. Gen. of Fla., Tallahassee, Fla., J. Robert Olian, Asst. Atty. Gen., Miami, Fla., for respondent-appellant.

Lewis S. Kimler, Asst. Public Defender, Miami, Fla. (court appointed), for petitioner-appellee.

Before TUTTLE, GEWIN and THORNBERRY, Circuit Judges.

GEWIN, Circuit Judge:

Mason Edward Braswell was convicted of aggravated assault in a Florida state court. The Florida court of appeals affirmed the conviction1 and the Florida Supreme Court2 and the United States Supreme Court denied certiorari.3 Braswell then sought habeas corpus relief in the United States District Court. The district court granted the writ and ordered that unless the State afforded Braswell a new trial within a reasonable period of time the court would order his release, 330 F.Supp. 281 (S.D.Fla.1971). The State appeals. We modify and affirm.

Prior to Braswell's state court trial by jury his attorney requested that the "rule" regarding the sequestration of witnesses be invoked. The motion was granted and the court gave lengthy instructions concerning the "rule" and the penalties for its violation.

Testimony at the trial revealed that Braswell was involved in a barroom fight in which William Porter allegedly received a knife wound at the hands of Braswell. Three persons testified for the State that they saw Braswell stab Porter.

At the conclusion of the State's evidence Braswell called Elmer L. Rogers to the stand. Rogers had been with Braswell at the bar. Upon a query by the trial judge whether the prosecution had "Any questions on the Rule?", the state challenged Rogers' competency to testify on the ground that he had been present in the courtroom in violation of the "rule" during the presentation of the State's case.4 Rogers stated that he

463 F.2d 1150
had not heard the court's instructions regarding the rule, but that he had heard the entire testimony of the aggravated assault victim. Braswell's counsel argued that he was unaware that Rogers was present, and that his testimony was material and important to Braswell's case. The court precluded Rogers from testifying.5 Subsequent to the trial Rogers died

Braswell next called one Anita Griffin as a witness. When she was asked by counsel if she had been with Elmer Rogers at or about midnight on April 8, 1967, the prosecution objected on the ground that testimony concerning Rogers had nothing to do with Braswell's trial and that the testimony concerned events which occurred after the alleged crime. Upon the offer of Braswell's counsel, a proffer of Miss Griffin's expected testimony was made out of the presence of the jury. Counsel stated that the witness would testify that in her presence various persons came up to Elmer Rogers and struck him about the head because he had been with Mason Braswell, and that for Rogers' protection he had to leave in the company of a detective. The court then sustained the State's objection and refused to permit Miss Griffin to testify.

The district court chose not to reconstruct in its order what occurred on the night of Braswell's alleged assault. We think a factual background is essential to an understanding of our decision. The narrative which follows is derived from the trial transcript, and includes testimony from prosecution witnesses as well as Braswell.

The Facts

The altercation which is the subject of this litigation occurred in the Big Steer Bar located in the vicinity of several horse farms in Dade County, Florida. According to Braswell he and a friend Elmer Rogers entered the Big Steer for the first time on April 8, 1967, the night of the alleged crime. Braswell testified that he and Rogers sat down and ordered drinks. After the drinks came Braswell told Rogers he was going back to "challenge on the pool table." When a new person wanted to break into a pool game he would place a quarter on the table and then wait his turn. Braswell claimed that he placed his quarter on the table and went back into the bar.

William Porter, witness for the prosecution and the victim of the alleged assault, testified that Braswell came in the pool room and asked to challenge the table

463 F.2d 1151
and then left. Later Braswell came back and asked "was he up." Braswell then went to the next table and asked if he could challenge the game. John Green was at that table. The next thing Porter knew Green was on the floor

Braswell testified that when he went back in the pool room a "guy with glasses on" (John Green) picked up Braswell's quarter. Braswell said he told Green that the quarter was his and had been put there to challenge the game. According to Braswell, Green said no it is not your quarter. When Braswell reached down to get it, Green pushed him. Braswell responded by hitting Green.

Green did not testify because of physical disability resulting from an unrelated accident. However, Mrs. Green, his wife, did testify. She stated that Braswell just "nonchalantly walked up, hit my husband, and knocked him cold." Mrs. Green testified that there was a man sitting at the bar who said he came with Braswell.

Mrs. Porter, William Porter's wife, gave no description of the events leading up to Braswell's encounter with Green. She simply testified that Braswell hit him.

After Braswell struck Green it is undisputed that three to four men grabbed Braswell and pulled, shoved or otherwise dragged him outside. Jack Tierney, a blacksmith, was in the bar waiting for some friends when he turned around and saw Green on the floor. He testified that he saw three or four men pulling Braswell out, so he followed them. He was going to help Braswell. Tierney had never seen Braswell before that time. When Tierney got outside he saw Braswell and another man squared off, so he did not interfere. Tierney testified that he went out to prevent Braswell from being "jumped." The fight was broken up by several other persons and everyone went back into the bar. Tierney further testified that the man who had originally been sitting with Braswell left later in the evening, after the fight, with a girl.

Braswell's description of what happened after he struck Green was substantially the same as Tierney's, except that Braswell testified that after the fight the men who dragged him outside told him to "get the hell away from there, and never come back." Braswell started to leave but remembered that his friend Rogers was still in the bar. Braswell was afraid the men might attack Rogers, who had recently been wearing a cast and was on crutches, so he went back in.

What happened upon Braswell's reentry was described by all of the witnesses. Mrs. John Green testified that when Braswell returned, Porter started toward him to ask him to leave without trouble. Braswell then, according to Mrs. Green, began stabbing Porter with a pocket knife. She then saw Jack Tierney step between them and Braswell cut Tierney. Mrs. Green testified that Porter had no weapon.

William Porter testified that Braswell came back into the bar immediately after the scuffle outside, had a few drinks, and then left. Soon thereafter Braswell burst back into the room running toward Porter. Porter testified that he (Porter) had a pool cue in his hand. When Braswell got close to Porter, Porter stepped in front of him to try to tell him to sit down and not disturb them. Porter claims that Braswell then hit him and a scuffle ensued. Porter heard someone shout, "he has got a knife." Porter never saw a knife. While they were fighting Jack Tierney stepped in and hit Braswell. Only after the fighting stopped did Porter realize that he had been cut.

Jack Tierney stated that when Braswell returned after the initial scuffle he went to the bar and joined "two other fellows." Soon thereafter Braswell left and a few minutes later came back in the bar headed towards the pool room. At the same time, Porter was seen coming out of the pool room. Tierney said

463 F.2d 1152
Braswell and Porter "more or less, bumped right into each other," and began fighting. Tierney heard someone say, "Hand me a bottle. He has got a knife." When Tierney saw Braswell stabbing Porter and the look on Porter's face, he ran up, grabbed Braswell's hand and told them to break it up. Braswell then wheeled on Tierney and cut him with the knife. In response Tierney knocked Braswell down and took the knife from him. Tierney identified the knife offered into evidence at the trial as the one he had taken from Braswell

Barbara Ann Porter testified that Braswell re-entered the bar after the scuffle outside, sat at the bar for a few minutes and then left. When he came back in he met William Porter coming out of the pool room and "they ended up getting into a fight." Mrs. Porter heard no conversation between Porter and Braswell immediately prior to the fight.

Braswell's version of what happened after he reentered the bar differs in certain details from the testimony of the other witnesses. He claimed that when he went back in the bar a man standing in a group with 3 or 4 other men told him, "I thought we told you to get the hell away from here and never come back." At the same time a man (Porter) came toward him with a cue stick. The man took a swing at Braswell and the fight started. Braswell claims that two other men came up and started striking him. He testified that he was trying to get out the door when he remembered his pocket knife. He then got his knife out of his pocket and struck at least one of the men with the knife. When he got to the door he felt a "lick" on his face which knocked him down. After that he claims he was hit in the face and kicked in the back.

The Issues on Appeal

With this factual background we turn to the order of the district court and the contentions of the...

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