Rogers v. Lynaugh
| Decision Date | 30 June 1988 |
| Docket Number | No. 87-6011,87-6011 |
| Citation | 848 F.2d 606 |
| Parties | Zackary ROGERS, Petitioner-Appellee, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent- Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Margaret Portman Griffey, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellant.
Zackary Rogers, Groves, Tex., pro se.
Appeal from the United States District Court for the Eastern District of Texas.
Before VAN GRAAFEILAND, * JOHNSON, and JOLLY, Circuit Judges.
The State appeals from a judgment of the district court granting a writ of habeas corpus in this 28 U.S.C. Sec. 2254 case. We affirm.
Petitioner Zackary Rogers was found guilty in Texas state court under section 29.02 of the Texas Penal Code of the second degree felony of robbery committed in 1983. For second degree felony, section 12.33 of the Texas Penal Code specified as punishment any prison term between two and twenty years as well a possible fine up to $10,000. For sentencing purposes, the indictment also charged that Rogers had earlier been convicted in 1977 of another robbery. Punishment in the present case was referred to the jury. The jury found that Rogers had previously been convicted in 1977 of robbery. Under these circumstances, section 12.42 of the Texas Penal Code specified that Rogers be punished for the instant offense (the 1983 robbery) as though found guilty of a first degree felony. For first degree felony, section 12.32 of the Texas Penal Code specified as punishment any prison term between five and ninety-nine years as well as a possible fine up to $10,000. The jury assessed as punishment a prison term of forty years as well as a fine of $5,000. The state trial court entered judgment in accordance with the jury's finding of guilt and its assessment of punishment.
The judgment was affirmed by the Texas state courts on direct appeal. Rogers then unsuccessfully sought habeas relief in the Texas state courts. Rogers thereafter applied to federal district court for habeas relief under 28 U.S.C. Sec. 2254, presenting some three claims including a claim of prosecutorial misconduct at the sentencing phase. The federal district court found the claim of prosecutorial misconduct to be meritorious and issued a writ of habeas corpus ordering Rogers' release from custody unless the State caused Rogers to be retried. The State appeals. We affirm.
Prosecutorial statements may violate due process in two ways. First, prosecutorial statements may implicate "a specific provision of the Bill of Rights" incorporated into the fourteenth amendment by the due process clause. Second, if prosecutorial statements do not implicate any such other incorporated constitutional right, they may constitute "a denial of due process" generally; 1 sometimes called a "generic substantive due process" violation. 2 The case law supplies a different test for each kind of due process violation.
In the case of an asserted generic due process violation, the court asks "whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction [or sentence] a denial of due process.' " 3 Under this test, although the asserted prosecutorial misconduct may have made the defendant's trial less than " 'perfect,' " 4 that imperfection must have rendered the trial "unfair" in order to be "constitutional error." 5 Thus, a court may decide that the asserted imperfection in the trial did not rise to the level of constitutional error without having to apply a harmless error test. 6 This Circuit has developed the following test of constitutional error when a generic due process violation is asserted: "The test applied to determine whether a trial error makes a trial fundamentally unfair is whether there is a reasonable probability that the verdict might have been different had the trial been properly conducted." 7
In the case of asserted prosecutorial misconduct implicating some other incorporated constitutional right such as the right to remain silent, the court asks " ' "whether or not the [prosecutor's] statement was manifestly intended or was of such character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." ' " 8 If under this test the prosecutorial misconduct is constitutional error, the court must generally inquire further whether or not the error is harmless. 9
During the sentencing phase of Rogers' trial, the State introduced evidence of three prior felony convictions of Rogers: (1) the 1977 robbery conviction charged in the indictment together with (2) another 1977 robbery conviction and (3) a 1977 burglary conviction. In its closing statement, the State made this argument to the sentencing jury:
This is his fourth final conviction for a felony offense. Robbery, robbery, burglary and now robbery again. I submit to you that each one of those felony offenses is worth at least 10 years. He received 12 on the first three. You put those 12 together and you come up with 36. And that is discounting what he has done since he got out of the penitentiary. But I submit to you that if you allocate just 10 years to each of those felony convictions you come up with 40.
Referring to prosecutorial argument to the jury at the guilt or innocence phase of trial, the American Bar Association Standards for Criminal Justice advise that the
prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict. 10
In application of this standard, courts have said that the prosecution may not "misstate[ ] the law" when arguing to the jury, whether during the guilt or innocence phase or the sentencing phase. 11
The State contends in defense of the closing argument set out above that the three prior felony convictions were relevant under the rehabilitation and specific deterrence purposes of Texas sentencing law to show the need for a long prison term as an appropriate sentence for the instant conviction. The fact that Rogers had committed the instant offense after having been previously convicted of felonies showed, the State argues, that Rogers had not been rehabilitated by the sentences served for the prior convictions. This assertedly suggested that Rogers could not be expected to be rehabilitated during any short prison term the jury might assess for the instant offense. Also, the prior robbery convictions assertedly confirmed that the violence exhibited by Rogers in the instant offense was not an isolated event and demonstrated the need for specific deterrence by assessing a long prison term.
Rogers does not, however, dispute that prior convictions may be relevant to the rehabilitation and specific deterrence goals of the Texas sentencing law. There can be no contention, however, that Texas sentencing law authorizes the assessment of a ten-year prison term for the instant conviction and an additional ten-year prison term for each of three past convictions for which final sentences have already been received and served. 12 Further, to the extent the State suggested otherwise to the sentencing jury, it misstated the governing Texas law and thereby tended to commit a generic due process violation.
We do not reach whether this possible generic due process violation amounted to constitutional error because we conclude below that the misstatement went beyond a generic due process violation by countermanding a specific constitutional right incorporated into the fourteenth amendment by the due process clause.
The fifth amendment guarantee against double jeopardy is enforceable against the states through the fourteenth amendment. 13 Among its other protections, the guarantee "protects against multiple punishments for the same offense." 14 We conclude that the State's argument to the sentencing jury challenged here " ' "was of such character that a jury would naturally and necessarily take it to be" ' " 15 an exhortation to assess multiple punishments for the same offense.
The close question before this Court is whether the jury understood the State's contested argument viewed in context 16 to be urging a forty-year prison term for reasons of specific deterrence and rehabilitation or whether it understood that argument to be urging multiple punishments for the same offense. 17 The State's argument told the sentencing jury that "each one of th[e] felony offenses" (the instant robbery offense and the three prior offenses) was "worth at least 10 years." The State's argument did not say that what the three prior offenses taken together with the instant offense implied about Rogers' facility for rehabilitation and his violent propensities warranted a forty-year prison term. Instead, the prior offenses themselves were said to be each worth ten years. Critically, the State urged the jury to "allocate just 10 years to each of th[e]se felony convictions [to] come up with 40" years of prison time. If the jury followed the State's urging, the jury allocated ten years for the instant offense, leaving thirty years of a forty-year prison term to be otherwise accounted for. Following the State's urging further, the jury accounted for those remaining thirty years by allocating an additional ten years for each of the three prior convictions for a total addition of thirty years. But Rogers had already received and served final sentences for these three prior offenses. The State was thus necessarily urging the jury to assess a new punishment in addition to the earlier punishment (and thus multiple punishments) for each of the three prior offenses. 18 We must conclude that the State thereby committed constitutional error in its closing argument to the jury during...
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