Zerschausky v. Beto

• Decision Date: 16 October 1967
• Docket Number: Civ. A. No. 67-50-SA.
• Parties: Stephen D. ZERSCHAUSKY v. Dr. George BETO.
• Court: U.S. District Court — Western District of Texas

274 F. Supp. 231

Stephen D. ZERSCHAUSKY v. Dr. George BETO.

Civ. A. No. 67-50-SA.

United States District Court W. D. Texas, San Antonio Division.

October 16, 1967.

Fred A. Semaan, San Antonio, Tex., Luther Jones, Corpus Christi, Tex., for plaintiff.

James E. Barlow, Criminal Dist. Atty., Preston H. Dial, Jr., First Asst. Dist. Atty., San Antonio, Tex., Crawford Martin, Atty. Gen., of Texas, Douglas H. Chilton, Asst. Atty. Gen., Austin, Tex., for defendant.

MEMORANDUM OPINION

SPEARS, Chief Judge.

Petitioner, Stephen D. Zerschausky, a person in state custody under a 30 year sentence imposed on April 9, 1963 as a result of a felony conviction of murder with malice, having exhausted his remedies in State Court, filed in this Court his petition for writ of habeas corpus, alleging, among other things, that he was denied the benefit of the testimony of three eye witnesses who were under indictment as accessories¹ and thereby disqualified as witnesses in his behalf under Articles 81 and 82 of the Vernon's Ann. Texas Penal Code, and Art. 711 of the Texas Code of Criminal Procedure, in effect at the time of his trial.² He contends that those statutes are in direct conflict with the Sixth Amendment to the Constitution of the United States; that he was denied due process of law under the Fourteenth Amendment; and that evidence favorable to him was suppressed by the prosecution in derogation of his rights under the Fifth, Sixth and Fourteenth Amendments.

No appeal of his conviction was taken by petitioner, but, instead, some three years later³ he filed an application for writ of habeas corpus, which was heard and the record thereof certified to the Court of Criminal Appeals of Texas by the judge who presided at the original trial.⁴ That Court on June 7, 1967, by a majority of three to two, overruled petitioner's contentions that his constitutional rights had been violated, Ex Parte Zerschausky, Tex.Cr.App., 417 S.W.2d 279, holding that the record fails to reflect "any ruling of the trial court denying petitioner the right to call the witnesses under indictment as accessories and have them testify for him", and that in the absence of such a ruling the petitioner was not denied due process. I agree with the majority.

After the jury had been selected and before any testimony had been adduced, defendant's counsel had an ex parte conference with the trial judge, where, according to his testimony given at the habeas corpus hearing in State Court, the following transpired:

"* * * I discussed the case of Stein v. State, infra—and, offhand I don't remember the citation but I can furnish it into the record—which holds that an accessory can testify if the prosecution will waive their objection. And I told Judge Brown that I wasn't sure whether or not he was familiar with the ruling in the case, but that I wanted him to be aware of it and that I intended to ask the District Attorney to waive his objection and let the accessories testify. If he agreed, I apprised Judge Brown of the fact that I intended to call these witnesses. If the District Attorney didn't waive his objection, then I couldn't call them. Judge Brown agreed with me, that that was more or less the law and to wait and see what the District Attorney's attitude was during the trial."

Said counsel further testified that later during the trial when the District Attorney, after having been requested to do so, refused to waive his objection and let the accessories testify, the witnesses were out in the hall ready to take the stand the minute they were called.

The record reflects that the three persons charged as accessories were represented by counsel other than that representing petitioner. Although it is true that the District Attorney was called as a witness before the jury and asked to waive any objection to the accessories testifying, neither of the proposed witnesses was called to testify, nor was their testimony offered out of the presence of the jury to show materiality or to preserve error. The trial judge was never called upon to rule on their competency as witnesses, and he was not asked to exercise his inherent power to permit them to testify, over any possible objection the State may have had, in order to protect the rights of the petitioner.⁵ As a consequence, it cannot be assumed that these three persons, or any one of them, would have in fact testified.⁶

In its opinion on rehearing (July 19, 1967), the Court of Criminal Appeals said, and I agree, that: "The decision of the Supreme Court in Washington v. State, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed. 2d 1019 * * *, is not inconsistent with the holding of the majority in that the trial judge did nothing to deny petitioner the right `to put his witnesses on the stand,' or the `right to compel their attendance in Court.'"⁷ The ex parte conference between the trial judge and defense counsel, even when considered along with the refusal of the District Attorney to waive his objection, hardly constituted a proper request to the Court for a definitive ruling on the questions involved. In the first place, the District Attorney was not a party to the conference, but, in any event, his refusal to waive did not foreclose the Court, in the exercise of its right, power and duty, from making its own rulings in the interest of justice. Certainly, the Court was under no duty to rule in the absence of a request made pursuant to well-defined procedures governing the trial of criminal cases in Texas.⁸ Since no effort was made by able counsel to follow these procedures, the conclusion is inevitable that they were either deliberately by-passed as a part of the trial strategy,⁹ or that the present attempt to raise the constitutional issues has come as an afterthought.¹⁰

I am not impressed by the contention, made for the first time in a supplemental brief filed just prior to oral argument before this Court, that a statement contained in a brief filed by the District Attorney in the Court of Criminal Appeals constituted a "concession" that the trial judge had made a ruling on the competency of the co-indictees as witnesses, or on the admissibility of their evidence.¹¹ The record reflects absolutely no ruling by the Court on any of those issues, and no showing has been made that the statement in the brief was intended to add to the "full, true and correct statement of facts", which the trial judge had "examined and found correct", or to constitute a voluntary and intentional confession of error. The brief and argument submitted to this Court by the State reflect the contrary, and the petition for writ of habeas corpus itself was not premised upon any such purported concession.

Nor am I impressed by the argument that the District Attorney's refusal to waive his objection to the co-indictees' testifying amounted to a suppression of evidence. Obviously, the information was exclusively in the hands of the defense, and, as has been noted, no real effort was made to place it before the Court. Under the circumstances of this case, there was no suppression of evidence in the constitutional sense. The situation, however, might well have been different if the Court upon proper request had refused to hear the witnesses, or if the witnesses had in fact testified as they now say they would have, out of the presence of the jury, and the trial court had then refused to allow the petitioner to call them as witnesses in the main case.

Being of the firm opinion that the granting of the petition for writ of habeas corpus in this case would not promote the administration of justice, and would constitute an unwarranted use of federal power, the petition is denied.

This memorandum opinion contains all findings of fact and conclusions of law to be entered, and shall be filed as the final judgment and order of this Court herein.

1 The three accessory indictments were dismissed on May 27, 1963, about seven weeks after sentence was imposed.

2 Article 81. When accessory may be tried. An accessory may in like manner be tried and punished before the principal when the latter has escaped; but if the principal is arrested he shall be first tried, and if acquitted, the accessory shall be discharged.

Article 82. Parties to offense as witnesses. Persons charged as principals, accomplices or accessories, whether in the same or by different indictments can not be introduced as witnesses for one another, but they may claim a severance, and if one or more be acquitted they may testify in behalf of the others.

Article 711. Principals, accomplices or accessories. Persons charged as principals, accomplices or accessories, whether in the same or different indictments, cannot be introduced as witnesses for one another, but they may claim a severance; and, if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others.

3 This was after the statute of limitations had run on any accessory charges against the three proposed witnesses.

4 This procedure is required by Article 11.07 Vernon's Annotated Texas Code...