Procella v. Beto

• Decision Date: 13 November 1970
• Docket Number: Civ. A. No. 70-H-39.
• Citation: 319 F. Supp. 662
• Parties: Gerald PROCELLA, Petitioner, v. Dr. George J. BETO, Director of the Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Texas

319 F. Supp. 662

Gerald PROCELLA, Petitioner, v. Dr. George J. BETO, Director of the Texas Department of Corrections, Respondent.

Civ. A. No. 70-H-39.

United States District Court, S. D. Texas, Houston Division.

November 13, 1970.

COPYRIGHT MATERIAL OMITTED

John M. Ille, Houston, Tex., for petitioner.

Crawford C. Martin, Atty. Gen., Robert C. Flowers and Charles R. Parrett, Asst. Attys. Gen., Austin, Tex., for respondent.

MEMORANDUM OPINION AND ORDER

NOEL, District Judge.

Petitioner, represented by retained counsel, has filed a petition for the writ of habeas corpus contending that his state conviction for murder with malice should be set aside because he was denied a fair trial. Respondent has answered attaching state records and pleadings, and has moved to dismiss the petition.

This Court has jurisdiction, 28 U.S.C. § 2254. Respondent concedes that state remedies are exhausted.

On June 9, 1970, the Court filed a Memorandum and Order in this case summarizing the petitioner's complaints, requesting the parties to inform the Court if they desired oral hearings, and requesting the parties to submit affidavits from potential witnesses.

On July 17, 1970, in response to a letter from petitioner's counsel asking what evidence the Court desired to be developed by affidavit, and requesting oral hearing, the Court directed its Deputy Clerk to write petitioner's counsel particularizing the evidence sought by the Court.¹ The letter also extended the prior deadlines for the submission of original and rebuttal affidavits. The case was set for pretrial and oral argument on September 4, 1970.

During the September 4, 1970 pretrial hearing petitioner's counsel announced to the Court his decision to rest Procella's case on the records, pleadings and affidavits before the Court. In response to direct inquiry from the bench inquiring why he had not submitted affidavits, he replied that he did not know of any witnesses with personal knowledge of the facts before the Court, and expressed his belief that further affidavits were not necessary to present his client's case. After hearing the oral arguments of counsel, the Court concluded that Procella's petition should be denied for the reasons to be developed below.

The facts have been gleaned from the pleadings, court records and affidavits filed by the parties, and the opinion of the Texas Court of Criminal Appeals in Procella v. State, 395 S.W.2d 637 (Tex. Crim.App.1965); cert. denied 384 U.S. 934, 86 S.Ct. 1450, 16 L.Ed.2d 534 (1966).

On November 21, 1962, the Harris County, Texas, grand jury indicted Gerald Procella and James Edward Graves for the crime of murder with malice aforethought. James Graves was subsequently tried, convicted and sentenced to death for his part in the crime.

On November 7, 1964, Gerald Procella was tried, convicted and sentenced to life imprisonment by a jury. The evidence of his guilt was overwhelming. The Texas Court of Criminal Appeals summarized the evidence in its opinion:

Appellant orally confessed that he was the driver of the automobile at the time of the robbery; that they only planned to rob the man and not to kill him; that they heard on the radio Mr. Phillips, the deceased, was dead and they knew they had to get rid of the pistol and that he threw it into the bayou. A pistol was subsequently found by a diver at the place that had been pointed out by appellant. Also, a fingerprint on a paper bag left in the motel (scene of the robbery) by Graves (co-defendant) was identified as the right little fingerprint of the appellant. Procella v. State, supra, at 638.

After the jury verdict was rendered Procella's counsel, Mr. O'Dowd, questioned several of the jurors about their deliberations in Procella's case. He then filed a motion for new trial predicated upon his allegations that Procella had been denied a fair trial because the jury had considered matters which were not introduced into evidence during the trial, and which were highly prejudicial to Procella because they caused him to be found guilty and caused him to receive a longer sentence than the jury believed fit his crime. Accompanying the motion was Mr. O'Dowd's sworn affidavit alleging that a juror, Mr. O. V. Gay, had related to him the factors considered by the jury while deliberating Procella's guilt and punishment. He alleged that Mr. Gay told him several jury members had mentioned that Procella's co-defendant had received a death sentence. Mr. Gay also was alleged to have told him that the jury disobeyed the judge's instructions not to discuss the length of time Procella would actually serve any sentence they gave him, and while discussing the length of actual service, misconstrued the law by their belief that a man would serve less time in prison on a life sentence than the twenty-five year sentence they had been considering. See: Pages 49-60 of the transcript in State v. Procella, Criminal District Court No. 4, Harris County, Texas.

In preparation for an oral hearing on Procella's motion for new trial Mr. O'Dowd moved the Clerk to issue subpoenas for two of the jurors, Mr. O. V. Gay and Mrs. Crellins.

Prior to the time set for the oral hearing the District Attorney's office contacted Mr. O. V. Gay and five other jurors, and had their affidavits taken and notarized by one of the prosecuting attorneys in Procella's case, Mr. Maida. See: Pages 74-79 of the transcript of the hearing on the motion for new trial in State v. Procella, Criminal District Court No. 4, Harris County, Texas (hereafter M.N.T. p. ___). These affidavits denied the allegations of impropriety made by Mr. O'Dowd in his affidavit. Mr. Gay's affidavit rebutted the statements attributed to him by Mr. O'Dowd. Mr. Gay's affidavit stated:

The verdict of all twelve jurors who served on this case was guilty and the unanimous punishment assessed was life in the state penitentiary. * * *

* * * At no time during our deliberations was there any consideration given by any of the jurors, to my knowledge, to the length of time the defendant would have to serve in the penitentiary because of the life sentence. We did not discuss nor consider the fact of parole or the possibilities of serving a shorter or longer period of time than the punishment assessed.

In the deliberation we did not discuss what punishment the co-defendant, James Graves, had received or would receive. I did not, in fact, know that James Graves had received the death penalty until after our verdict had been received in open court in the case against Gerald Procella. M.N.T. p. 74.

The prosecutor took these affidavits to the trial judge prior to the hearing. The trial judge then called the sheriff's office and had the jurors previously subpoenaed by Mr. O'Dowd instructed that they need not attend the hearing because the Court had quashed the subpoenas. M.N.T. pp. 9-11.

Although not subpoenaed, Mr. O. V. Gay was present at the oral hearing on the motion for new trial. Mr. O'Dowd attempted to call Mr. Gay as his first witness. The Court denied his request, and instead on voir dire by the state, admitted into evidence the affidavit of Mr. Gay. M.N.T. pp. 15-17.

After denying repeated requests by Mr. O'Dowd to call Mr. Gay as a defense witness, the Court had Mr. Gay sworn and called as the Court's own witness. The Court asked Mr. Gay to read his affidavit, and then asked him if it were true. Mr. Gay replied that it was correct. M.N.T. pp. 23-24. The Court then asked Mr. Gay if any consideration was given to the length of time Procella would have to serve on a life sentence. Mr. Gay replied that the jury did not. M.N.T. pp. 27-28.

At this time Mr. O'Dowd asked permission to examine Mr. Gay on voir dire. The Court refused his request. M.N.T. p. 28.

The Court resumed its examination of Mr. Gay. During this examination the following exchange took place:

Q. by the Court: Was it discussed in your presence or did you hear it discussed, the punishment of the co-defendant, James Graves, what he had received in this case?

A. by Mr. Gay: It was mentioned but that was it. I heard somebody, I don't remember just who it was, say that the other boy got the chair, and somebody said "Wait a minute, hold it right there, that boy there is not on trial. This one is. Don't mention that any more."

Q. by the Court: Did that affect your verdict at all?

A. by Mr. Gay: No, Sir.

Q. by the Court: You did not even consider it for any purpose?

A. by Mr. Gay: No, sir, I had no reason to. M.N.T. pp. 27-29.

The Court then tendered the prosecutor the right to cross-examine the witness. The prosecutor declined, and after heated discussion, the Court tendered the right of cross-examination to Mr. O'Dowd. During this cross-examination the following colloquy occurred:

Q. by Mr. O'Dowd: Mr. Gay, you did have a conversation with me on at least two occasions before today, didn't you?

A. by Mr. Gay: Well, yes.

Q. by Mr. O'Dowd: Isn't it true that you yourself told me that some of the jurors at one point in the deliberations were considering a verdict of twenty-five years?

A. by Mr. Gay: That's right.

Q. by Mr. O'Dowd: Mr. Gay, was there at all in the jury room any discussion about how long the defendant might have to serve any particular sentence that should be imposed upon him?

A. by Mr. Gay: None after we reached a verdict. No. M.N.T. pp. 31-33.

The Court then interrupted the cross-examination and would not allow Mr. O'Dowd any further examination on the issue. M.N.T. p. 33.

The Court then resumed its direct examination of Mr. Gay.

Q. by the Court: Did you discuss how long he (Procella) would have to serve on a life sentence?

A. by Mr. Gay: No, sir, it wasn't discussed.

Mr. O'Dowd again requested permission to question Mr. Gay on this issue, and the Court again refused his request. M.N.T. p. 34.

After the movant rested, the Court received the affidavits of the other five jurors, rebutting Mr. O'Dowd's affidavit about jury misconduct, into evidence. The state then tendered...