Hardin v. Estelle, MO-71-CA-101.

• Citation: 365 F. Supp. 39
• Decision Date: 29 March 1973
• Docket Number: No. MO-71-CA-101.,MO-71-CA-101.
• Parties: Charles Edward HARDIN v. W. J. ESTELLE, Director Texas Department of Corrections.
• Court: U.S. District Court — Western District of Texas

365 F. Supp. 39

Charles Edward HARDIN v. W. J. ESTELLE, Director Texas Department of Corrections.

No. MO-71-CA-101.

United States District Court, W. D. Texas, Midland-Odessa Division.

March 29, 1973.

COPYRIGHT MATERIAL OMITTED

Wm. Monroe Kerr, Midland, Tex., for petitioner.

John Hill, Atty. Gen., of Tex., Lonny Zwiener, Asst. Atty. Gen., of Tex., Austin, Tex., James A. Mashburn, Dist. Atty., 142nd Judicial Dist., Jerry Buckner, Asst. Dist. Atty., 142nd Judicial District, Midland, Tex., for respondent.

SUTTLE, District Judge.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

This habeas corpus case has been brought by the petitioner, Charles Edward Hardin, to obtain federal review of his state criminal trial. On September 22 and 23, 1969, he was tried and found guilty by a jury in Midland Texas of robbery by assault. He had previously been convicted of the same type of crime and because of this prior conviction he was assessed a sentence of life.¹

Thereafter, the petitioner appealed to the Texas Court of Criminal Appeals raising two grounds of error. First, he contended that he had been denied compulsory process of witnesses because the trial judge had refused to issue bench warrants to secure the attendance of five "material alibi witnesses." See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). And second, he contended that he had been denied a fair trial by an impartial jury because throughout the trial he had been shackled. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The appellate court fully considered both issues and affirmed. Hardin v. State, 471 S.W.2d 60 (Tex.Cr. App.1970). State remedies, thus, were exhausted. The petitioner then brought this case raising the same grounds of error and a factual hearing was held. On the basis of the facts established at that hearing, this Court finds that the petitioner has been denied a trial which will pass constitutional muster and, accordingly, finds that the petition for habeas corpus must be granted.

The petitioner's first ground of error is based on facts which occurred prior to the date of his trial. Although he has had a long history of criminal activity, he has consistently maintained that he is innocent of the crime with which he was charged and was not in Midland on the date it occurred. Rather, he contends that on the date of the robbery he was en route from Midland to Indianapolis, Indiana by air.²

An investigator appointed to assist the defense sought to establish this alibi at an early stage of the case. But after a superficial examination of airline schedules, he found that passenger lists were not available and thus, he was unable to determine whether the petitioner had been on a flight from Midland when the robbery took place. Those passenger lists were never secured. Nevertheless, the petitioner continued to insist that he had not been in Midland. And he furnished his two appointed counsel with the names of several persons who were then incarcerated throughout the state but who were personally aware of his flight.³ They were never questioned.⁴ As the trial approached, however, in August of 1969, one of the petitioner's counsel informally asked the trial judge to bring these witnesses to Midland to testify for the defense. The judge was made aware of the fact that the petitioner believed that they would establish his alibi; yet he summarily denied the request.

From the circumstances surrounding this denial, it is clear that the trial judge did not base his decision on a procedural defect of the petitioner's request. Instead, it is clear that his decision was based on the merits of the request and that he would not have the witnesses brought to trial. Therefore, the petitioner's counsel abandoned any hope of obtaining the witnesses until the week prior to trial.⁵ On Friday of that week, in order to establish a record of their request, counsel formally moved to secure the attendance of five witnesses noting that "all of said witnesses are to be used in this cause as alibi witnesses and for said purpose they are material to the preparation of the defense". The trial judge, without any response from the state, again denied the motion and ordered that:

On this the 18th day of September, 1969, the defendant duly presented to the Court the Motion to Bench Warrant out the following material alibi witnesses on behalf of Charles Edward Hardin and the Court after due consideration of said application, and after having found that it was duly and properly filed, denied to the Defendant, Charles Edward Hardin, compulsory process to bring to Midland County Theo Rae Thames, Russell Chamberlain, Raymond Lee Brown, Nancy Haggard and Pat Wayne Gilliland, all being material alibi witnesses on behalf of the defendant Charles Edward Hardin. (Emphasis supplied).

As a result, except for one of his counsel, no witnesses were called in the petitioner's defense.

The Texas Court of Criminal Appeals did not reach the substance of this order in its review of the petitioner's trial. Rather, notwithstanding the trial court's finding that these were material alibi witnesses, the appellate court found that the petitioner had failed to attach an affidavit to his formal motion "saying what each witness would testify to . . ." Hardin v. State, supra, 471 S.W.2d at 62. Thus, the court concluded that the petitioner had failed to request the attendance of the witnesses in a proper manner and was therefore not entitled to relief.

The record discloses that the petitioner did fail to attach to his motion the affidavit required. Initially then, the inquiry of this Court must turn from the substantive validity of the trial court's action to the validity of the rule of procedure which barred its review. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1964). If that rule was clearly announced and if it reasonably served a legitimate interest of the state in the context of this case, the denial of the right of compulsory process is an issue which rests upon non-constitutional state grounds and lies beyond the pale of federal habeas corpus review.

The right to compulsory process, even though "Few rights are more fundamental than that of an accused to present witnesses in his own defense", Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973), is not absolute. Not every witness requested by a defendant must be produced simply because a defendant requests his attendance. "The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use". Washington v. Texas, supra, at 23 of 388 U.S., at 1925 of 87 S. Ct. Accordingly, to determine which witnesses a defendant has a right to use and which witnesses must be produced, states may require that a defendant establish a colorable need for each of the witnesses he requests. Hoskins v. Wainwright, 440 F.2d 69, 71 (5th Cir. 1971).

The exact manner in which this colorable need must be shown is the question here. Although the Texas Court of Criminal Appeals held that the motion of the petitioner failed because it was not accompanied by an affidavit "saying what each witness would testify to . . ." no case can be found which set out such a requirement prior to the petitioner's trial.⁶ Thus, the petitioner cannot be deemed to have been apprised of the existence of this requirement. Nor can he be harmed because he failed to comply with its demands. See Wright v. Georgia, 373 U.S. 284, 83 S. Ct. 1240, 10 L.Ed.2d 349 (1963). States may not bar the assertion of constitutional rights by ex post facto procedural rules. And the fact that there were no affidavits in this case, therefore, cannot preclude this Court's review.

That finding alone, however, does not resolve the problem presented by the petitioner's motion. Prior to his trial, the Texas Court of Criminal Appeals had required that motions to compel the production of witnesses apprise the trial court of the testimony which was expected and offer some assurance that the witnesses requested would waive any privileges they may have and testify for the defense. See Ex parte Selby, 442 S.W.2d 706 (Tex.Cr.App. 1969) and Ex parte Thomas, 429 S.W.2d 151 (Tex.Cr.App.1969). While the petitioner's motion arguably may have complied with the former requirement, by noting that the witnesses requested were material alibi witnesses, it did not comply with the latter.⁷ Therefore, assuming that this requirement reasonably serves a legitimate interest of the state, it cannot be said that the petitioner presented his request to the trial court in the proper manner. But in the context of this case, that fact should not foreclose federal review. The action taken by the trial court was not based on a procedural deficiency of the petitioner's motion; it was based instead on the merits. Hence, to ignore the merits now because of a procedural deficiency would give constitutional credence to "an arid ritual of meaningless form", Staub v. City of Baxley, 355 U.S. 313, 320, 78 S.Ct. 277, 281, 2 L.Ed.2d 302 (1957). And that, of course, is not required. See Monger v. Florida, 405 U.S. 958, 92 S.Ct. 1163, 31 L.Ed.2d 236 (1972) (Douglas, J., dissenting); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1964); and N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Rather, because the merits of the petitioner's motion were the basis for the action taken by the trial court, to give the Constitution substance in this case, the merits of the action taken by the trial court must be subject to review.

Those merits require very little discussion. The petitioner's request to secure the attendance of alibi witnesses was, simply stated, a request to present a defense. Mr. Chief Justice Warren noted in Washington v. Texas, supra, 388 U.S. at 19, 87 S.Ct. at 1923, that:

The

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