Haggard v. Henderson

• Decision Date: 25 March 1966
• Docket Number: Civ. No. 4089.
• Citation: 252 F. Supp. 763
• Parties: William H. HAGGARD, Petitioner, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Nashville, Tennessee, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

252 F. Supp. 763

William H. HAGGARD, Petitioner, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Nashville, Tennessee, Respondent.

Civ. No. 4089.

United States District Court M. D. Tennessee, Nashville Division.

March 25, 1966.

Norman D. Lane, Nashville, Tenn., for petitioner.

Ed R. Davies, Special Counsel, State of Tennessee, Nashville, Tenn., for respondent.

WILLIAM E. MILLER, Chief Judge.

Petitioner was convicted in the Knox County Criminal Court on a charge of third degree burglary and of being an habitual criminal, both offenses having been presented to the same jury at the same time. He was given a sentence of three years on the burglary charge and a life sentence under the habitual criminal conviction. It is his position that the simultaneous trial of the charges before the same jury constituted a denial of due process of law and rendered his conviction void.¹ To substantiate this claim, petitioner relies on Harrison v. State, Tenn., 394 S.W.2d 713 (Sept. 14, 1965), a case decided subsequently to petitioner's conviction and confinement. In considering the procedure to be followed in trying an habitual criminal charge under Tennessee's statute (7 Tenn.Code Anno. Sec. 40-2801 et seq.), the Court held that:

"* * * it is prejudicial error to allow knowledge or evidence of previous convictions, enhancing the penalty upon conviction of the present crime, to be placed before the jury prior to their determination of defendant's guilt or innocence of the present crime." id at 717.

This holding, however, is not dispositive of the question now presented. For the Tennessee Supreme Court was nevertheless of the view that the challenged procedure did not constitute a denial of due process, and that the rule disapproving it should be applied only to "future cases." The court specifically stated:

"* * * we will not permit this new rule to serve as a basis for collateral attack on convictions upon which prisoners have either exhausted or waived the appellate process." Harrison v. State, supra, at 717.

As further clarification the court then held:

"* * * this decision is not to be given retroactive effect beyond those cases now in the appellate process." id at 718.²

Can this limitation on the operative effect of a procedure which in a jury trial permits the simultaneous introduction of proof necessary to sustain both the substantive offense and the habitual criminal charge be harmonized with the requirements of due process under the Fourteenth Amendment?³ The Court has concluded that this issue must be answered in the negative.

Directly in point here is the Fourth Circuit's well-reasoned decision in Lane v. Warden, Maryland Penitentiary, 320 F.2d 179 (4th Cir. 1963), in which petitioner challenged the Maryland habitual criminal procedure which permitted the introduction of his prior convictions at the outset of his trial on the substantive offense. After a general discussion of when and under what circumstances prior convictions were admissible, the court held that the state procedure "destroyed the impartiality of the jury and denied him due process of law." id at 187. The prior convictions in Lane, as in this case, were of the same general character as the substantive offense, a fact which the court felt "enhanced" the likelihood of prejudice. But whereas in the Lane case two prior convictions were alleged in the indictment, in this case three prior convictions on various charges of housebreaking and larceny and receiving and concealing stolen property were alleged in the indictment and read to the jury along with the current charge of burglary. The impact of such a procedure upon the minds of the triers of fact can hardly be doubted.

The view adopted by the Lane court is also consistent with decisions in the field of evidence. Subject to exceptions, it has been repeatedly held that evidence of other offenses not relevant to the charge on trial may not be introduced. Harper v. United States, 99 U.S.App.D.C. 324, 239 F.2d 945 (D.C.Cir.1957). Under some circumstances, moreover, the introduction of related offenses may constitute an error of constitutional magnitude. United States ex rel. Lowry v. Myers, 242 F.Supp. 477 (E.D.Pa. June 14, 1965). In the latter case the court held in a prosecution for a murder which had occurred in the course of a robbery that the introduction of prior charges and convictions of larceny was "so fundamentally unfair as to be constitutionally defective," id at 480. In granting a petition for writ of habeas corpus on due process grounds, the court stated:

"Here was a man who had taken others' property five times before and who had served substantial time in jail. Here was a man who had a propensity for obtaining property without working for it by taking that of other people. What more reasonable conclusion by a jury of laymen than that he was bent on doing precisely the same thing on the night of the crime. Indeed, although the evidence was not properly in the case to persuade the jury of guilt, its very vice is in its overpersuasiveness. See Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 93 L.Ed. 168 (1948)." id at 479.

Myers involved the former Pennsylvania procedure which, in first degree murder cases, required that the jury ascertain at the same hearing both the verdict and the punishment. Despite this distinction, the instant case presents essentially the same constitutional problem, i. e., whether the introduction of former convictions serves to deprive the defendant of a fair trial on the substantive offense.

Adverting to the habitual criminal procedure, the Court of Appeals for the Fifth Circuit in Breen v. Beto, 341 F.2d 96 (5th Cir. 1965), declined to follow the ruling in Lane, supra:

"* * * we are of the firm view that that case Lane, supra was not well decided and that the correct view of the law is otherwise." id. at 97. The Fifth Circuit has adhered to this ruling in subsequent cases, notably Reed v. Beto, 343 F.2d 723 (5th Cir. April 7, 1965). In this latter case, however, the Supreme Court has granted certiorari, and an authoritative answer to the problem here presented may be forthcoming, 382 U.S. 1025, 86 S.Ct. 649, 15 L.Ed.2d 539 (January 31, 1966).⁴

It is true that Supreme Court dicta indicate oblique approval of the procedure now challenged. For instance, in Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954), the defendant appeared for trial on a felony charge and was then informed that he would also be tried under Tennessee's habitual criminal statute. He had waived counsel on the substantive charge but asked for a continuance in order to obtain counsel to represent him on the habitual criminal charge. This request was denied. He was then tried on both the substantive offense and the habitual criminal charge, and found guilty on both counts. In its opinion, the Court first stated that:

"* * * even though the Act does not create a separate offense, its applicability to any defendant charged with being an habitual criminal must be determined by a jury in a judicial hearing. * * * That hearing and the trial on the felony charge, although they may be conducted in a single proceeding, are essentially independent of each other." Chandler v. Fretag, supra 348 U.S. at 8, 75 S.Ct. at 4.

The Court, however, reversed the lower court on the ground that the defendant had been denied counsel:

"By denying petitioner any opportunity whatever to obtain counsel on the habitual criminal accusation, the trial court deprived him of due process of law as guaranteed by the Fourteenth Amendment." id at 10, 75 S. Ct. at 5.

Since the Court's only ruling was that denial of counsel on the habitual criminal charge was a violation of due process rights, (the Court emphasizing the essentially independent character of the two offenses) its observation that trial of the two charges "may be conducted in a single proceeding," was at best parenthetical and not a necessary facet of the decision.

The dictum in Chandler v. Fretag, supra, was reiterated in Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). Petitioner in that case was convicted of second degree murder. After his motion for a new trial had been overruled, petitioner was then informed that he would be prosecuted under West Virginia's habitual criminal statute. The conviction was attacked on two grounds. First, it was asserted that due process required formal notice of the habitual criminal charge before trial on the substantive offense. Second, petitioner alleged that the act was applied to only a minority of those subject to its provisions. The Court rejected both contentions, holding that under the particular circumstances the petitioner was not in a position to claim lack of a "fair opportunity" to answer the habitual criminal charge on the issue of identity. id at 453, 82 S.Ct. 501. The West Virginia procedure in Oyler v. Boles, supra, actually required a separate determination on the habitual criminal charge, with the result that the court was not required, in disposing of the case, to indicate approval of a different procedure.

In both Oyler v. Boles, supra, and Chandler v. Fretag, supra, the Supreme Court referred to a prior West Virginia case, Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912), in which it was held that a prisoner was not deprived of due process of law because the question as to former conviction was passed upon separately. Indeed, as the Court pointed out, this had been the statutory procedure in England since the Act of 6 and 7 Will. IV, c. 111 enacted in 1836:

"It was established by statute in England that, although the fact was alleged in the indictment, the evidence of the former conviction should not be given to the jury until they had found their verdict on the charge of crime. The act of 6 and 7 Will. IV, c. 111, provided

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