Trussell v. Estelle, 81-1381

• Decision Date: 04 March 1983
• Docket Number: No. 81-1381,81-1381
• Citation: 699 F.2d 256
• Parties: Jerry Wayne TRUSSELL, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 256

699 F.2d 256

Jerry Wayne TRUSSELL, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent- Appellee.

No. 81-1381.

United States Court of Appeals, Fifth Circuit.

March 4, 1983.

As Amended on Denial of Rehearing May 9, 1983.

Scott J. Atlas, court appointed, Tracy K. Christopher, court appointed, Houston, Tex., for petitioner-appellant.

Charles A. Palmer, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN and JOHNSON, Circuit Judges, and PARKER ^*, District Judge.

JOHN V. PARKER, District Judge:

Petitioner, a state prison inmate, invokes the jurisdiction of the federal courts under 28 U.S.C. Sec. 2254 for review of his trial and conviction by the state of Texas of the crime of aggravated robbery. The district court denied petitioner's application for writ of habeas corpus.

Although petitioner attacks his conviction from several different directions, his basic complaint regarding his trial is that a police "offense report" relating to a pretrial line-up was not admitted into evidence.

Careful review of the record reveals that there is no merit to any of petitioner's contentions and we affirm denial of the writ.

Trussell was convicted of being one of four men who committed the armed robbery of several employees of the American Bank of Commerce in Wolfforth, Texas, on August 31, 1976. The robbers wore ski masks and none of the bank employees could identify any of them, although several testified that petitioner had the same physical characteristics as one of the robbers. The bank employees also positively identified a white 1976 Ford LTD automobile which the robbers used as their get-away vehicle.

A few minutes after the robbery, four men arrived at the Frenship Co-op Gin, located approximately five miles from the bank, in the white Ford LTD automobile. A maroon Pontiac Grand Prix automobile and a pick-up truck with a white top were parked in the lot at the gin. The four men got out of the white Ford; two got into the pick-up truck and drove off and two got into the Pontiac and drove off.

Mr. T.B. Brown and Mr. Elmer Jorgensen, employees of the gin, observed the four men arrive and depart. At the trial Brown specifically identified petitioner, Trussell, as being the person who got into the pick-up truck and drove it away. He estimated that he was about thirty feet from the pick-up truck, while his companion, Mr. Jorgensen, could identify none of the four men and he estimated that the distance was about three hundred feet.

Mr. Brown told the police what he had seen and he noted that the pick-up truck had the identifying words "Smith Ford, Slayton, Texas" imprinted on the rear bumper. Mr. Brown could neither read nor spell and he testified that Jorgenson had told him about the lettering "Smith Ford" on the truck. At trial, Jorgensen denied that he said that; it is established however that the truck did, in fact, have those words on the rear bumper.

Included in the funds which the robbers took from the bank was certain "bait money," bills which could later be identified. Although some of his co-defendants had "bait money" in their possession at the time of their arrest, none was found on petitioner at the time of his arrest. The authorities identified Trussell's fingerprint on a pistol which was discovered in the maroon Pontiac. This pistol was identified as being similar to one of the pistols used at the robbery. Trussell's wife testified that on the night before the robbery, Joe Carol Jackson, a co-defendant, came to the Trussell home and discussed the possible sale of the weapon to Trussell who handled it at that time.

Since all of the evidence linking Trussell to the robbery was circumstantial, the testimony of Brown positively identifying him as the man who drove up in the white Ford LTD and who got out of that vehicle and drove away in the white pick-up truck, was crucial to the state's case. The police report in question was prepared by Deputy J.B. Douglas relating to the results of a line-up held on the same date as the robbery, August 31, 1976. Both Brown and Jorgensen participated in the line-up and the report contained, inter alia, the following statement:

Mr. T.B. Brown ... and Elmer Jorgensen ... came to the Sheriff's Dept. and viewed the above line-up but could not identify any of the above as the persons that left the white LTD Ford at the Frenship Gin.

The existence and content of the report was disclosed to the defense before the trial, in response to a Brady type motion. The defense was also informed that Deputy Douglas, the author of the report, had testified at the trial of a co-defendant that the report contained a typographical error and was not correct with respect to Brown's inability to identify Trussell.

After the state rested its case, petitioner called the deputy sheriff who was custodian of the records and attempted to qualify the offense report as a business record under Article 3737e, Texas Revised Civil Statutes Annotated (Vernon).

The trial court sustained the state's objection and the report was not admitted in evidence. On appeal, the Texas Court of Criminal Appeals held that the report was indeed a business record under Texas law but that it was nevertheless not admissible. The appellate court held that if offered as original exculpatory evidence, the report was "hearsay within hearsay," reasoning that the report represented an out of court statement by Douglas reciting an out of court statement by Brown (that Brown could not identify anyone). The appellate court also held that if offered to impeach Brown's rebuttal testimony (that he had in fact identified Trussell at the line-up), then the report was not admissible because counsel failed to cross examine Brown concerning the time, place and circumstance of the prior inconsistent statement, as required by Texas procedure. Defendant's conviction was affirmed.

Subsequently, petitioner exhausted his state court remedies relative to the claimed constitutional deprivation now raised on appeal; he then instituted this proceeding in federal district court which, as noted above, denied the application.

Petitioner argues that exclusion of the offense report from the jury was so fundamentally unfair as to violate his Fifth Amendment right to due process of law and his Sixth Amendment right to compulsory process. He further alleges that the trial court restricted his cross examination of "the sole eyewitness" (Brown) regarding his failure to identify petitioner at the pretrial line-up and that the prosecutor mislead him about the availability at trial of Deputy Douglas, "deliberately failed to disclose" the line-up report to the jury, allowed Brown to testify falsely that he had identified Trussell at the pretrial line-up and failed to correct that false testimony. Finally, petitioner argues that had the offense report been received in evidence, no rational juror could have found him guilty beyond a reasonable doubt and thus there was insufficient evidence to support his conviction under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

A federal court may entertain an application for a writ of habeas corpus from a person in state custody, "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. Sec. 2254. Federal review of state convictions is confined to the very narrow standard of due process. The Constitution does not guarantee every state defendant an error-free trial and before a federal court may overturn a state conviction, it must first find an error that amounts to a, "failure to observe that fundamental fairness essential to the very concept of justice." Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166, 180 (1941); Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431, 436 (1974). We may not consider the correctness of the evidentiary rulings of the Texas courts; our authority is limited to a determination of "whether there has been a constitutional infraction of [petitioner's] due process rights which would render the trial as a whole 'fundamentally unfair'." Nelson v. Estelle, 642 F.2d 903 (5th Cir.1981). Lane v. Jones, 626 F.2d 1296 (5th Cir.1980), cert. den. 450 U.S. 928, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981).

I.

In his brief, filed by new counsel who did not represent petitioner at the trial, plaintiff asserts that the prosecution included the name of Deputy Douglas, the author of the report, on its witness list and noted an "s" by his name indicating to the defense that he had been subpoenaed and would be present at the trial. It turned out that Deputy Douglas was in Raymondville, Texas on the date of the trial and he was not called by the prosecution. Petitioner asserts that he was prejudiced in some unspecified fashion by the absence of Deputy Douglas, despite the fact that the trial judge (as we shall see) located the police officer and had him available to testify the following morning. Petitioner declined to call Deputy Douglas.

In any event, the record shows that petitioner's representations are simply not correct. At trial, counsel for petitioner stipulated that although Douglas was on the prosecution's witness list, the defense was advised before the trial that the state would probably not use him and that no subpoena had been issued to him. ¹ Thus, counsel for petitioner knew before the trial that Douglas had not been subpoenaed and was not likely to be present at the trial.

Similarly, the asserted use of "false" testimony by the prosecution and its alleged "deliberate failure" to disclose the line-up report to the jury have no basis in the record. The prosecution admittedly disclosed the contents of the report to the defense before trial. Since the author of the report had...