Turner v. Estelle, 74-3764

Decision Date09 July 1975
Docket NumberNo. 74-3764,74-3764
Citation515 F.2d 853
PartiesOscar TURNER, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Ted Redington, Staff Counsel for Inmates, Texas Dept. of Corrections, Huntsville, Tex., for petitioner-appellant.

Robert C. Flowers, Asst. Atty. Gen., R. L. Lattimore, George R. Bedell, Herman I. Little, Jr., Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

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

Before CLARK, Associate Justice, * and GOLDBERG and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

In this appeal from the District Court's denial of a writ of habeas corpus, we must decide whether petitioner's conviction of robbery by assault in a Texas state court must be overturned on the ground that the state failed to afford petitioner a speedy trial. We conclude that Turner's right to a speedy trial has not been violated and affirm the decision of the District Court.

I. Factual Background

On April 21, 1967, Donnie Hutcheson, the proprietor of a small grocery store in Dallas, Texas, was robbed of several hundred dollars. During the robbery Hutcheson was shot three times and seriously wounded by an unknown assailant, who pursued him into the back room of his store. The room was completely dark, and the robber gave up on his wounded quarry, emptying the cash drawer on his way out.

On June 8, 1967, a violent robbery occurred at a filling station in West, Texas. The station attendants were being held at bay by two robbers when two men drove in. The attendants were told to "play it cool" and see what the men wanted. While the attendants were working on the car, one of the men got out, at which point the robber holding the pistol let loose a hail of bullets in the direction of the car. One of the attendants escaped, though wounded, and called for help. The other was also shot but could not get away. The gunman (who, it turned out, was petitioner Turner) walked over to him and, standing over him, fired again. Both attendants survived, but the two men in the car were killed in the original gunfire. The robbers were apprehended soon thereafter.

Donnie Hutcheson saw the television coverage of the filling station robbery and recognized one of the arrested suspects as the man who had robbed his grocery store and shot him. On June 11, 1967, he identified petitioner Turner, one of the two men arrested in connection with the filling station robbery, as his assailant. The record shows that these offenses were committed by Turner while he was out on bail in connection with a prior arrest in March 1967 for assault with intent to murder.

An indictment was handed down against Turner by the Dallas County Grand Jury on July 14, 1967, charging him with robbery with firearms (later changed to robbery by assault). No action was taken on the indictment, however, because Turner was still being held for trial on murder charges in connection with the filling station robbery in West, Texas. The murder trial, held in Waco, Texas, resulted in Turner's conviction of first degree murder in January 1968. The jury imposed the death penalty, and a protracted series of appeals ensued. The conviction was affirmed by the Texas Court of Criminal Appeals in an exhaustive opinion analyzing sixty assignments of error. Turner v. State, Tex.Cr.App., 1969, 462 S.W.2d 9. Because Turner was convicted by a death-qualified jury, however, the Supreme Court reversed the judgment of conviction "insofar as it imposes the death sentence," relying on Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Turner v. State, 403 U.S. 947, 91 S.Ct. 2289, 29 L.Ed.2d 858 (1971).

On remand, the Texas Court of Criminal Appeals held that although a commutation of Turner's jury-imposed death sentence would preserve the conviction, there had been no such action, and therefore the conviction would have to be reversed, since under Texas law the punishment imposed by a jury may not be reassessed. Turner v. State, Tex.Cr.App., 1972, 485 S.W.2d 282 (June 28, 1972). 1 Upon being advised, however, that the Governor had granted a commutation of Turner's death sentence to life imprisonment on August 29, 1972, the court set aside its judgment of reversal and reinstated the conviction. Turner v. State, Tex.Cr.App., 1972, 485 S.W.2d 282, 284 (1972). 2

Turner, in the meantime, had initiated legal proceedings to compel the State of Texas either to try him for robbing Hutcheson or dismiss the charges. On June 2, 1971, he filed an application for a writ of habeas corpus in the Texas Court of Criminal Appeals, which treated Turner's papers as a petition for a writ of mandamus and forwarded them to the Supreme Court of Texas for consideration. 3 There ensued some correspondence between Turner and the Texas Supreme Court concerning discrepancies between his name and the names on the detainers he sought to have dissolved, and concerning the status of a Dallas attorney whom the Court believed to be Turner's counsel.

Having clarified these matters, the Supreme Court wrote a letter on August 19, 1971, to the Criminal District Court concerning the status of Turner's robbery indictment and several others then pending against him. On October 7, 1971, the trial judge to whom Turner's case had been assigned informed the Supreme Court that he had issued a bench warrant for Turner on September 13, 1971, but that upon arriving at the prison in Huntsville, Texas, the sheriff had been told that Turner was under a sentence of death. The trial judge instructed the sheriff not to pursue matters further as long as Turner was on death row.

The Texas Supreme Court advised Turner that it could not consider his petition in light of the death sentence it believed was pending. In a letter to the Court dated October 21, 1971, Turner explained that he was no longer under a death sentence, but the Court, for reasons unspecified, concluded that it did not have jurisdiction to grant the relief he requested anyway.

On November 3, 1971, Turner sought relief from the United States District Court for the Northern District of Texas, alleging denial of his right to a speedy trial. On January 29, 1972, the District Court ordered that further proceedings in the robbery case and other matters pending against Turner be permanently stayed unless the State of Texas granted him a trial on the charges within sixty days. That order was entered without prejudice to his right to assert his speedy trial claim at trial.

On March 27, 1972, Turner's robbery case went to trial. The court held a hearing on Turner's speedy trial claim but found no violation of his rights. The jury returned a verdict of guilty and assessed punishment at life imprisonment. The conviction was affirmed on appeal. Turner v. State, Tex.Cr.App., 1974, 504 S.W.2d 843. The present habeas corpus petition was filed shortly thereafter, alleging denial of Turner's right to a speedy trial.

II. Application of the Legal Standard

In applying speedy trial principles to the foregoing facts, we recognize that the very nature of the right "compels courts to approach speedy trial cases on an ad hoc basis." Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). The right to a speedy trial is "a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied." Barker v. Wingo, supra, 407 U.S at 521, 92 S.Ct. at 2187. Unlike, for example, double jeopardy, "(t)he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances." Barker v. Wingo, supra, 407 U.S. at 522, 92 S.Ct. at 2188. In Barker the Supreme Court identified four factors the courts are to consider in adjudicating speedy trial claims: "(l)ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530, 92 S.Ct. at 2192. Weighing all these factors, we must conclude that petitioner has failed to establish a denial of his right to a speedy trial.

A. Length of the Delay

Petitioner was brought to trial four years and eight months after he was indicted for the robbery. 4 In Barker the Court noted that the length of the delay is a triggering mechanism. There must be some substantial delay before any need arises to inquire into the other factors. Here the delay was substantial clearly sufficient to require that we look further. We note, however, that by itself the length of the delay cannot justify overturning the conviction. In Barker the delay in bringing the defendant to trial was well over five years, yet the Court concluded, upon considering all the circumstances, that the right to a speedy trial had not been denied.

B. Reasons for the Delay

In this case the reason offered by the State of Texas for the delay in bringing Turner to trial is an unusual one: the pendency of his trial for first-degree murder in Waco, Texas, and the inevitably time-consuming appeals from the conviction and death sentence that followed. Simply put, Texas' position is that it justifiably chose not to expend scarce judicial and prosecutorial resources in trying a defendant facing a death sentence, the execution of which obviously would have eliminated the need for any trial at all. 5

In Barker and the speedy trial cases in this Court we find three kinds of reasons for delay in bringing a defendant to trial. "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government." Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192. Thus in Arrant v. Wainwright, 5 Cir., 1972, 468 F.2d 677, we overturned the conviction of a defendant brought to trial nearly two years after being indicted because, when called upon to justify the delay, the prosecutor stated that he...

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