Zilka v. Estelle, 75--1959

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation529 F.2d 388
Docket NumberNo. 75--1959,75--1959
PartiesAnthony Martin ZILKA, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections, Respondent-Appellee.
Decision Date25 March 1976

Stanley G. Schneider, Staff Counsel for Inmates, Texas Dept. of Corr., Huntsville, Tex., for petitioner-appellant.

John L. Hill, Atty. Gen., Merrill Finnell, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before WISDOM, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This case raises the question of whether constitutional error committed in permitting the prosecution to expose two counselless felony convictions during cross-examination of a state defendant can be cured by application of the harmless error rule so that the state conviction can withstand constitutional attack in a habeas corpus proceeding, and if so, whether the state trial record supports the district court's determination that the error was harmless beyond a reasonable doubt. We conclude that this constitutional infirmity can and did amount only to harmless error and therefore affirm the district court's denial of a writ of habeas corpus under 28 U.S.C.A. § 2254.

Petitioner was convicted in 1964 of statutory rape of his three year-old stepdaughter. The conviction was affirmed. Zilka v. State, 385 S.W.2d 680 (Tex.Cr.App.1964). Texas law at that time did not provide for a bifurcated trial and the same jury determined both guilt and punishment. Petitioner testified at length in his own behalf. During cross-examination the following exchange occurred:

Q Mr. Zilka, have you ever been convicted of a felony?

A Yes, sir.

Q How many times?

Mr. Pool; We object to that question.

The Court: Overruled; answer the question.

Q How many times, Mr. Zilka?

A Twice.

Q Both of those in Pennsylvania, is that correct?

A Yes, sir.

This was the only evidence concerning Zilka's prior convictions. Its brevity stands in marked contrast to some forty pages of direct and cross-examination. The evidence was not commented upon thereafter by either the lawyers or the judge. These prior convictions referred to occurred in 1953. The State has conceded the convictions to be invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971) (Gideon fully retroactive).

If the instant cross-examination by the prosecutor had concerned valid prior convictions, their use would have been proper for impeachment purposes. See Vernon's Tex.Code of Crim.Pro. art. 38.29. The prosecutor followed the correct procedure by asking if Zilka had ever been convicted of a felony, when and how many times. See generally Beaudine v. United States, 368 F.2d 417, 421--422 (5th Cir. 1966); C. McCormick, Evidence § 43, at 92--93 (1954); 2 Wright, Federal Practice & Procedure § 416, at 193--196 (1969).

There is no doubt, however, that the use of constitutionally invalid prior convictions for impeachment purposes is error of constitutional dimension. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).

The question then is whether the error leads to an automatic grant of a writ of habeas corpus, or whether, as the State contends, the conviction should remain undisturbed if the error was harmless, notwithstanding its constitutional proportions.

The Supreme Court, faced with the argument that denial of a federal constitutional right, no matter how unimportant, should automatically result in reversal of a conviction, squarely held in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), that some constitutional errors in the setting of a particular case can be deemed harmless. In fashioning the rule, however, the Court declined to follow the harmless error statute or rules of the 50 states and the United States. These laws usually prohibit reversal of criminal convictions which do not materially affect the outcome of the trial, prejudice the defendant or infringe upon some substantive right. For purposes of reversal, however, the person affected has the burden of showing harm. See generally 5 Am.Jur.2d Appeal & Error § 780, at 222-223 (1962).

When the error rises to constitutional level, the United States Supreme Court determined that a new standard need be developed in order to better protect a defendant from the greater prejudicial impact which naturally may follow violations of the Constitution. The Chapman Court held that: '(B)efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.'386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710. In other words, constitutional error could be said to be harmless only if there is no reasonable possibility that the constitutionally infirm evidence might have contributed to the conviction. See Fahy v. Connecticut, 375 U.S. 85, 86--87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171, 173 (1963). Under Chapman, once error is established, it carries the presumption of prejudice unless the state demonstrates otherwise beyond a reasonable doubt. In Chapman the constitutional infirmity concerned the prosecutor's comment on defendants' failure to testify which, under the circumstances of that case, the Court held not to be harmless error.

In the nine years since Chapman, the Supreme Court has applied this harmless error concept to a full spectrum of cases where constitutional errors were involved. See, e.g., Milton v. Wainwright, 407 U.S. 371, 372--373, 92 S.Ct. 2174, 2175, 33 L.Ed.2d 1, 3--4 (1972)(post-indictment/pretrial confession); Chambers v. Maroney, 399 U.S. 42, 52--53, 90 S.Ct. 1975, 1981--1982, 26 L.Ed.2d 416, 428--429 (1970) (unreasonable search and seizure); Price v. Georgia, 398 U.S. 323, 331, 90 S.Ct. 1757, 1758--1762, 26 L.Ed.2d 300, 306 (1970) (double jeopardy); Harrington v. California, 395 U.S. 250, 253--254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284, 287 (1969) (denial of Sixth Amendment right to confrontation); Fontaine v. California, 390 U.S. 593, 595--596, 88 S.Ct. 1229, 1230--1231, 20 L.Ed.2d 154, 156--157 (1968) (comment on defendant's failure to testify); United States v. Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149, 1166 (1967) (pretrial lineup and in-court identification). Likewise, the Fifth Circuit has applied the harmless error rule to cure a wide range of constitutional errors. See, e.g., Null v. Wainwright, 508 F.2d 340, 345 (5th Cir.), cert. denied, 421 U.S. 970, 95 S.Ct. 1964, 44 L.Ed.2d 459 (1975) (Miranda violation); Hoover v. Beto, 467 F.2d 516, 522-523 (5th Cir.), cert. denied, 409 U.S. 1086, 93 S.Ct. 703, 34 L.Ed.2d 673 (1972) (Sixth Amendment right to confrontation); Adkins v. Beto, 462 F.2d 802, 804 (5th Cir. 1972) (evidence from illegal search and seizure said to be harmless error); United States v. White, 444 F.2d 1274, 1278 (5th Cir.), cert. denied, 404 U.S. 949, 92 S.Ct. 300, 30 L.Ed.2d 266 (1971) (comment for failure to take stand held to be harmless error). See also Smith v. Estelle, 519 F.2d 1267 (5th Cir. 1975), reh. granted in part and remanded, 527 F.2d 430, 432 n. 4 (5th Cir. 1976) (unlawful confession).

The petitioner asserts the use of the counselless convictions for impeachment to be inherently prejudicial, however, and not curable by the harmless error rule. Petitioner relies on Burgett v. Texas, supra, and Loper v. Beto, supra.

In Burgett, the Supreme Court reversed the Texas Court of Criminal Appeal's affirmance of a defendant's conviction for assault with malice aforethought with intent to murder. Burgett involved the use of prior invalid convictions for purposes of enhancement which, under Texas law, required the imposition of a mandatory life sentence upon conviction. There the Court stated that

(t)o permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case.

389 U.S. at 115, 88 S.Ct. at 262, 19 L.Ed.2d at 324. The Court in Burgett set forth the general rule that convictions in violation of Gideon cannot be used 'to support guilt or enhance punishment.' Burgett held the error to be of constitutional quality but did not indicate if the error was automatically fatal.

This Court has not read Burgett as establishing the need for an automatic reversal when an illegal conviction has been so used. Although Beto v. Stacks, 408 F.2d 313 (5th Cir. 1969), affirmed the granting of a writ of habeas corpus when evidence of a prior conviction declared void as violating the Fourth Amendment was used to enhance punishment in a single stage recidivist trial, the Court there looked at Burgett in this context:

The simple fact that a constitutionally infirm conviction was used at appellee's trial now makes it incumbent upon the State to show 'beyond a reasonable doubt' that the jury did not rely on such conviction 'to support guilt.' Burgett v. Texas, supra; Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Absent such a showing, this court has no choice but to affirm the lower court's decision.

408 F.2d at 318.

Recently, this Court in Thomas v. Savage, 513 F.2d 536 (5th Cir. 1975), recognized that use of a prior counselless conviction in a misdemeanor context could be harmless error when used in consideration of a sentence. See Swanson v. Estelle, 523 F.2d 1250 (5th Cir. 1975); Barnes v. Estelle, 518 F.2d 182 (5th Cir. 1975). Cf. Smith v. Estelle, supra.

Other circuits have also read Burgett as not precluding the curative use of the harmless error rule even when the prior convictions were counselless. These cases are similar to the case at bar where the prior counselless convictions where used for...

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