St. John v. Estelle

• Decision Date: 17 November 1977
• Docket Number: No. 76-1178,76-1178
• Citation: 563 F.2d 168
• Parties: Jerry ST. JOHN, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 168

563 F.2d 168

Jerry ST. JOHN, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Respondent-Appellant.

No. 76-1178.

United States Court of Appeals, Fifth Circuit.

Nov. 17, 1977.

Marianne Wesson Cantrick, Asst. Atty. Gen., John L. Hill, Atty. Gen., Richel Rivers, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

Ray J. McQuary, Staff Counsel for Inmates, Darrington Unit, Rosharon, Tex. Ken Anderson, Staff Counsel for Inmates, Huntsville, Tex., for petitioner-appellee.

Before BROWN, Chief Judge, INGRAHAM, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit Judges.

BY THE COURT:

The per curiam opinion and decision of the panel of this court, dated January 3, 1977, 5 Cir., 544 F.2d 894, is adopted herewith as the opinion and decision of the en banc court.

See also Wainwright v. Sykes, --- U.S. ----, 97 S.Ct. 2497, 53 L.Ed.2d 594 (decided June 23, 1977).

Accordingly, the judgment of the district court in this matter is

REVERSED.

THORNBERRY, Circuit Judge, with whom RONEY, Circuit Judge, joins specially concurring:

Only because of the intervening decision in Wainwright v. Sykes, --- U.S. ----, 97 S.Ct. 2497, 53 L.Ed.2d 594 (decided June 23, 1977), of which the district court did not have the benefit, do I concur in the result reached by the Court En Banc.

JAMES C. HILL, Circuit Judge, specially concurring:

I concur in the result announced for the en banc court in the majority opinion. However, inasmuch as I feel that the court has grappled with issues unnecessary to the decision of this case, I concur without adopting all said for the en banc court.

When the question was asked by the prosecutor which elicited the fact that the petitioner-defendant had only recently returned from a stay in the state penitentiary, defense counsel's objection was so far off the mark as to amount to no objection at all. ¹ Nine questions later, ² defense counsel moved for a mistrial. No proper objection to this testimony had been stated to the trial judge and certainly not at a time when the trial judge could have protected any right of the defendant sought to be preserved. Nevertheless, on his own motion, the trial judge, in his final instructions to the jury, told the jurors that they should not consider any prior incarceration of the defendant as having any bearing on his guilt or innocence of the crime presently charged. ³

We are here concerned only with the constitutionality of the state court proceedings. Rose v. Hodges, 423 U.S. 19, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Smith v. Colman, 528 F.2d 1362 (5th Cir. 1976). Had defense counsel ultimately brought the objection properly to the attention of the trial court, all that the Constitution could require would have been that the testimony be stricken and the jurors properly instructed to disregard it. In the exercise of his discretion, and on his own motion, the trial judge did all that the defendant could have expected the Constitution to have required him to do.

In the case of United States v. Myers, 329 F.2d 280 (3d Cir. 1964), the Third Circuit was confronted with a factual posture nearly identical to the case at bar. In Myers, evidence of the defendant's prior criminal record was admitted for purposes in addition to its bearing on the defendant's credibility. The trial judge initially refused to confine the evidence to its permissible use. Later, upon reflection, he reversed his ruling and gave the jury an instruction limiting the use of the evidence to its proper purpose.

In observing that the limiting instruction cured any previous error as to the use of the evidence and in noting the absence of any fundamental unfairness, the court held that the petition "does not raise a question of constitutional dimension and is not a proper subject for relief under federal habeas corpus." 329 F.2d at 284.

The instant case is more compelling in calling for reversal of the District Court for the failure of the petition to allege a claim of constitutional magnitude. Thus without evaluating the effect of the state's "contemporaneous objection" rule and without deciding whether a "deliberate bypass," Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), or an "inexcusable procedural default," Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (Powell, J. concurring) occurred or whether the petition fails to show "cause and prejudice," Wainwright v. Sykes, --- U.S. ----, 97 S.Ct. 2497, 53 L.Ed.2d 594 (decided June 23, 1977), I concur in the result reached by the majority.

TJOFLAT, Circuit Judge, with whom GOLDBERG and GODBOLD, Circuit Judges, join dissenting:

I

Following a not guilty plea, the petitioner, Jerry St. John, was convicted of armed robbery and sentenced to fifty years confinement in a Texas penitentiary. The state's case hinged on the testimony of the sole eyewitness to the crime the victim. There was no physical evidence introduced to link the petitioner to the crime.

The reliability of the victim's identification of petitioner was seriously questioned both in cross-examination of the victim and through defense witnesses. In an attempt to bolster the state's case against petitioner, the prosecutor set out to portray him as an ex-convict. To this end, he succeeded in establishing through his cross-examination of petitioner's mother, Lois Nicholas, that petitioner had recently been released from a Texas penitentiary. ¹ This evidence formed the basis of the state's closing argument, wherein the prosecutor exhorted the jury not to allow the ex-convict to go free. ² It is the obvious prejudice that flowed from this successful trial tactic which lies at the foundation of petitioner's habeas corpus claim. I can find nothing in the proceedings before the jury that justified the prosecutor's presentation of the state's case in this way. The trial judge obviously thought it was prejudicial for petitioner to be characterized as an ex-convict; in his final charge to the jury, he sua sponte cautioned it to disregard the evidence of petitioner's previous incarceration. ³ No cautionary instruction was given, however, regarding the prosecutor's repeated references, during his closing argument, to the petitioner's prior incarceration. ⁴

This Court has repeatedly recognized the prejudice inherent in such evidence and has criticized the use of inflammatory devices such as those relied upon by the prosecutor in this case. E. g., Railton v. United States, 127 F.2d 691 (5th Cir. 1942). Railton recognized a "fundamental rule of criminal law that guilt of another offense cannot generally be proven to show guilt of the offense charged in the indictment." Id. at 692. In Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892), Justice Harlan observed for a unanimous court that "(p)roof of (other crimes) only tend(s) to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community . . . ." Id. at 458, 12 S.Ct. at 295. The prejudice to a defendant when a jury learns of his prior incarceration is a reality because "(i)t is logical to conclude, and very apt to be concluded, that because a man was dishonest once he will steal again." Railton at 693. The due process implications of such evidentiary use are not remote. See Spencer v. State of Texas, 385 U.S. 554, 569, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (Warren, C. J., concurring in part and dissenting in part); Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).

No contention is made by the state in the case before us that the development and use of the petitioner's ex-convict status was proper. The Texas Court of Criminal Appeals which reviewed petitioner's conviction on direct appeal held that the fact of his incarceration was not admissible because it was not relevant to any legitimate inquiry in the case. ⁵ The Texas court affirmed, however, finding that the petitioner waived this error by failing to make an appropriate objection to it at trial.

After exhausting state remedies, petitioner filed an application for a writ of habeas corpus in the Northern District of Texas. The district court concluded that it was not foreclosed from considering petitioner's constitutional claim, found that he had been prejudiced by the introduction of the evidence of prior incarceration, and granted the writ. A panel of this court reversed the district court's grant of the writ on the authority of Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), which was decided after the district court's order was entered. The en banc court has today adopted verbatim the per curiam opinion of the panel. In addition, the court cites Wainwright v. Sykes, --- U.S. ----, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which was decided by the Supreme Court after the panel decision was handed down.

II

The majority, ⁶ without referring to the opinion of the Texas Court of Criminal Appeals, also found that petitioner had failed properly to object to the reception of the prejudicial evidence of recent imprisonment at the time the evidence was introduced. Then, relying on Williams and Sykes, the majority applied the Texas contemporaneous objection rule to foreclose further consideration of the merits of petitioner's constitutional attack on his conviction in federal habeas corpus proceedings. In my opinion, neither Williams nor Sykes requires such a mechanical approach to the problem. Although these cases greatly diminish the vitality of the deliberate bypass standards of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), they do not stand for the proposition that the failure to comply with a state's contemporaneous objection rule necessarily bars full habeas review of the petitioner's constitutional...