Jerry St. John v. W. J. Estelle, Jr., Director

168 determining liability Ray McQuary, the existence of J.

when Staff Counsel for In- Unit, Rosharon, Tex., mates, unnecessary Darrington We find it in the Hobbs case. Inmates, Anderson, for error for the dis- Staff Counsel whether it was Ken to decide actions; Tex., Huntsville, petitioner-appellee. even if to sever these trict court considered the evi- the district court had BROWN, Before Judge, Chief INGRA- case, well advanced in the Gore as dence HAM, THORNBERRY, COLEMAN, case, still in the Hobbs Hobbs that advanced GOLDBERG, AINSWORTH, GODBOLD, under 42 would not have carried her burden MORGAN, CLARK, RONEY, GEE, 1981, 3612(a), (c). 1982 or U.S.C. §§ TJOFLAT, FAY, Judges. HILL and Circuit BY THE COURT: Finally, argues the defendant he is entitled to an award of reasonable per opinion curiam and decision of attorney’s fee because 42 1988 U.S.C. § panel court, January 3, of this dated party” may provides “prevailing 1977, Cir., 894, 5 adopted 544 F.2d here- granted such award. defendant opinion with as the and decision of the en argument for the first time dur raised banc court. Therefore, in ac argument. his oral Wainwright Sykes, See also v. -U.S. 28, U.S.C., with F.R.A.P. Rule 28 cordance -, 2497, (decided 53 L.Ed.2d 594 argument. we need not consider this 23, 1977). June part, AFFIRMED in REVERSED Accordingly, judgment of the district part, proceed- for further and REMANDED court in this matter is opinion. ings consistent with this REVERSED.

THORNBERRY, Judge, Circuit RONEY, joins whom Circuit Judge, special- ly concurring: Only because of the intervening decision Wainwright v. Sykes,-U.S.-, 2497, (decided S.Ct. L.Ed.2d 594 June 1977), of which the district court did not Jerry JOHN, Petitioner-Appellee, ST. benefit, have the do I concur in the result reached the Court En Banc. ESTELLE, Jr., Director, W. J. HILL, JAMES C. Judge, specially Circuit Respondent-Appellant. concurring:

No. 76-1178. I concur in the result announced for the en banc court opinion. Appeals, United Court of States However, inasmuch Ias feel that the court Fifth Circuit. grappled with issues unnecessary to the case, Nov. decision of this I concur without

adopting all said for the en banc court. When the was asked by the prosecutor which elicited the fact that petitioner-defendant had recently re- Cantrick, Atty. stay Marianne Wesson Asst. turned from a penitentia- in the state Gen., Hill, Gen., Atty. ry, John L. Richel Riv- defense counsel’s was so far ers, Gen., Austin, Tex., Atty. Asst. for re- off the mark as to amount to no at all.1 spondent-appellant. home, Jerry long How Mrs. A. For about a month. Q. Nicholas? For about a month?

169 later,2 expected defendant could have defense counsel Consti- questions Nine required tution to have him to do. proper a mistrial. No for moved been stated to testimony had to this Myers, In the case of United v. 329 States time when certainly not at a judge and (3d 1964), trial F.2d 280 Cir. Third Circuit any posture with a factual near- protected could have was confronted Myers, to the case at bar. In ly identical sought pre- to be the defendant right of evidence of the defendant’s criminal motion, Nevertheless, on his own served. purposes record was admitted for in addi- to in his final instructions judge, the trial bearing its on the defendant’s tion to credi- they should jurors that jury, told bility. judge initially The trial refused to incarceration of any prior not consider permissible the evidence to its use. confine bearing on his having any defendant Later, reflection, upon he reversed his rul- presently crime guilt or innocence gave an instruction limit- ing and charged.3 proper use of the evidence to its ing the with the here concerned We are purpose. proceed- constitutionality of the state court limiting observing In instruction 19, 423 96 S.Ct. Hodges, v. U.S. ings. Rose any previous cured error as to the use of Townsend v. 175, (1975); 162 46 L.Ed.2d noting and in the absence of the evidence 745, 293, 9 L.Ed.2d Sain, 83 S.Ct. 372 U.S. unfairness, any fundamental the court held Colman, F.2d 1362 v. 528 (1963); Smith 770 petition “does not raise a counsel ulti- 1976). Had defense (5th Cir. constitutional dimension and is not a properly subject relief brought proper under federal ha- mately 329 F.2d at 284. court, corpus.” beas all that the the trial attention require would have could Constitution compelling The instant case is more jur- and the testimony be stricken calling for reversal of the District Court for it. disregard instructed properly allege petition ors the failure of the claim discretion, on his magnitude. Thus without of his of constitutional the exercise evaluating state’s “con- motion, judge did all that effect the trial own said, Nicholas, thing you What’s the first Mrs. Yes. A. you Jerry April the officer told what when after arrived home sometime He Q. 20th, done? 1966? Jerry say did it. He A. He didn’t for sure did. A. He my boys’ pictures because he took both of had he been? Where Q. had done it. Honor, object didn’t know who to this we Your MR. MOORE: you you bring pictures with to- Did those personal Q. knowl- knows of her own unless she day? edge. sir, No, kept He two of them and A. didn’t. testify of her I assume she’ll THE COURT: my boy brought in the Marines he who is knowledge. personal own picture back to me about three weeks later. been, he Mrs. Nicholas? Where had Q. you through pictures, to look these I’ll ask Q. penitentiary. in the He had been A. would, Nicholas, you you Mrs. and see if if been, Mrs. Nicholas? had he Where Q. any Jerry’s picture see of these? penitentiary. in the He had been A. Yes. A. Carlsbad, then, with his picture He had not been is this? Which Q. Q. father, Honor, time, had he? Your at this MR. MOORE: Previously, had been. Defense makes a motion for a mistrial due he A. brought gotten penitentiary the Prosecutor has out the fact out of the He had Q. peniten- in the April, the fact that the Defendant was 1966— the 20th tiary. Honor, the Prosecutor Your MR. GREEN: THE COURT: Overruled. testifying now. suggestive. leading It’s THE COURT: that certain “You are instructed in this case Jerry af- until sometime didn’t come home Q. regard admitted before evidence was right? April, the 20th of ter having of an of- been convicted the defendant right. A. That’s the one for which he is now on fense other than State down to Huntsville he had been And that such evidence trial. You are instructed Prison? against the defendant as cannot be considered Right. A. any, any guilt, if in this case.” of his evidence 170 reliability of the victim’s identifica- and without objection” rule

temporaneous bypass,” seriously questioned a “deliberate tion deciding whether 822, 9 Noia, in cross-examination of the victim Fay v. 372 both U.S. pro- (1963), attempt an “inexcusable In an through defense witnesses. 837 L.Ed.2d Williams, Estelle default,” against petitioner, the state’s case cedural to bolster 1691, 48 L.Ed.2d 501, 96 S.Ct. set out him as an portray U.S. concurring) occurred J. (Powell, end, (1976) To this he succeeded in ex-convict. show “cause fails to petition the whether establishing through his cross-examination - Sykes, v. Wainwright prejudice,” and mother, Nicholas, Lois that petitioner’s -, 53 L.Ed.2d U.S. recently released from been petitioner in the 1977), I concur June (decided penitentiary.1 This evidence a Texas by majority. the result reached closing argu- the basis of the state’s formed ment, prosecutor the the wherein exhorted FLAT, Judge, with whom Circuit T JO go to allow the free.2 jury not ex-convict to GODBOLD, Circuit GOLDBERG It is the obvious that flowed from join dissenting: Judges, this successful trial tactic which lies at the corpus foundation habeas I nothing proceed- claim. I can find in the jury ings justified pros- before the that the petition- the Following guilty plea, a not presentation the state’s case in ecutor’s John, of armed er, Jerry was convicted St. The way. judge obviously this fifty years robbery and sentenced thought petitioner it was for The penitentiary. Texas finement ex-convict; characterized as an in his hinged testimony of the be case on the state’s sponte he sua charge to the jury, victim. final to the crime —the eyewitness sole disregard it the evidence of physical evidence introduced cautioned was no There previous the crime. incarceration.3 No petitioner the to link objected pulled pistol ini- that that store and an, to the that on that wom- 1. Petitioner prior tially thought, the fact of incarceration elicited he “If I don’t harm that woman grounds. hearsay 117) was overruled. —(R. The evidence, did not strike the Petitioner move to prosecutor suggesting peti- was that during later Mrs. he did move a mistrial but experienced tioner as an criminal was careful part III and cross-examination. See Nicholas’ not to harm the victim so that if he were to be 12, infra. note apprehended he would not have to face addi- charges. tional closing argument prose- Throughout his guilty implied was cutor are instructed You in this case that certain status. At one of his recent “ex-con” because regard evidence was admitted before urged jury point he that: having the defendant been convicted of an dealing person the kind we’re This is offense other than which he is the one for here, of the this ex-con who is out with now on trial. You instructed that such are penitentiary less month at the time than a against cannot be evidence considered (R. 115) pulled robbery. he any any, guilt, if defendant evidence of his incarceration to also used fact of recent He (Supp. 6) in this case. R. propose motive to have for the my judgment, far this instruction was committed crime: First, complete. implication permit- by it from day may unemployed have been since He jury prior to consider conviction in ted resolving got pen, penniless the whole he out of Second, guilt. issues other than it 116) (R. time. prior failed to advise that the incarcer- directly prosecutor attempted but- then any purpose. not to be ation was considered for testimony by ar- tress the state’s identification deference, my disagree With Brother way guing was which the crime that, concurring opinion by giving the Hill’s instruction, way was consistent with committed the trial satisfied the court’s would commit a crime: “ex-con” obligation process petitioner a due to insure keep is an in mind that this . . [A]nd fair trial. ex-con, there, no first he’s been this is down with, your’re dealing he’s offender perhaps people his mind around these thinking, perhaps he walked at the time however, given, incarceration cautionary instruction was not admissible because it repeated refer- prosecutor’s was not regarding any legitimate relevant to inquiry ences, closing argument, during his in the case.5 The Texas court affirmed, however, finding incarceration.4 waived this error failing to make an appropriate recognized repeatedly This Court objection to it at trial. inherent in such evidence and has inflammatory devices After exhausting remedies, criticized the use of state peti- upon application such as those relied tioner filed an for a writ of States, g., corpus in this case. E. Railton United habeas in the Northern District of (5th 1942). recog- 127 F.2d 691 Cir. Railton Texas. The district court concluded that it nized a “fundamental rule of criminal law was not foreclosed from considering peti- guilt gener- claim, of another offense cannot tioner’s constitutional found that he ally guilt to show proven prejudiced by offense had been the introduction of in the charged indictment.” Id. at 692. In prior incarceration, evidence of States, 450, Boyd granted v. United 142 12 U.S. the writ. panel A of this court 292, (1892), 35 L.Ed. 1077 Justice Har- S.Ct. reversed the district court’s grant of the for a lan observed unanimous court that writ on the authority Williams, of Estelle v. “[p]roof 501, of to 1691, 425 U.S. 96 S.Ct. 48 [other crimes] L.Ed.2d 126 tend[s] jurors, (1976), the defendants with the to which was decided after the district away issue, draw their minds real court’s order was entered. The en banc produce impression they and to today court has adopted verbatim per wretches whose lives were of no opinion were value curiam panel. addition, of the In - 458, . . .” community to the Id. at the court Wainwright cites Sykes, v. -, 2497, 12 at 295. to a defend- 97 S.Ct. U.S. S.Ct. 53 L.Ed.2d 594 , prior (1977) when a learns of his incarcer- ant which by was decided the Supreme reality logical ation is a because is to panel Court after the decision was handed “[i]t conclude, concluded, very apt and to be down. a man was dishonest once he will

because II again.” steal Railton at 693. The due implications evidentiary of such process use The majority,6 referring without to the Spencer are not remote. v. See State of opinion of the Texas Court of Ap- Criminal 554, 569, Texas, 648, 385 U.S. 17 peals, also found had failed (1967) (Warren, J., L.Ed.2d 606 C. concur- object properly reception to the of ring part dissenting part); in Michel- prejudicial evidence of imprisonment recent States, 469, son v. United 335 69 U.S. S.Ct. time the evidence was introduced. 213, (1948). 93 L.Ed. 168 Then, relying on Sykes, Williams and majority applied the by contemporane- contention is made the state in the Texas No objection ous development case before us that rule to foreclose further con- petitioner’s ex-convict sideration of the use of the status was merits of proper. Ap- The Texas Court of Criminal stitutional attack on his conviction in feder- peals corpus which reviewed conviction al habeas proceedings. my opin- ion, appeal held that the fact of his Sykes on direct neither Williams nor requires State, (Tex.Cr. 4. It be determined from the record on St. cannot John v. 427 S.W.2d 862 whether, pursuant practice, appeal App.1968). to Texas closing arguments attorneys of the were jury. charge If held after court’s to the My majority opinion reference to the en banc 3, quoted supra, instruction note was deliv- necessarily course, incorporates, of reference argument, prosecutor’s ered “ex- panel opinion, Estelle, St. John v. 544 argument disregard con” was made in blatant (5th 1977). F.2d 894 Cir. spirit of the of the instruction. If the instruc- arguments, clearly tion followed the then it was inadequate pros- as it made no reference to the inappropriate ecutor’s comments. 172 problem. simply square approach a mechanical cannot the majority’s ap-

such diminish the Although greatly these cases proach to this case with perceive what I standards vitality bypass of the deliberate be the analysis by called for Williams and Noia, Fay S.Ct. 9 372 U.S. Sykes. (1963), stand for they do not L.Ed.2d stated, Broadly Sykes Williams and speak comply proposition that the failure to the issue what a federal habeas court objection contemporaneous a state’s with must do when it is faced with a constitu- necessarily review of rule bars full habeas the vitality tional claim of which is drawn claim. Rath- constitutional into application of a state’s er, it to which the state’s rule extent contemporaneous rule. To be grounded legitimate state interests sure, these cases operates acknowledge in a manner consistent a state’s right to a fair trial that deter- defendant’s contemporaneous objection may ap- rule whether a federal habeas court need mines plied deny petitioner, who not has purpose to it. Insofar as the of the defer it, complied with habeas review. The tradi- contemporaneous objection is to Texas tional purpose contemporaneous ob- encourage presentation and resolution jection rule has been to implement policy constitutional issues at it is valid. occurring during that errors course purpose accom- Where is nonetheless ought to be timely avoided I believe it was this case—a plished —as presentation to the trial technical deviation from the rule does not in the first instance. The Supreme Court type proce- rise to the give “inexcusable instructed, Sykes, Williams and requires default" which federal ha- dural a where is the claim made that the contempo- reaching beas court’s abstention from the raneous rule bars a petitioner’s claim. constitutional right question error, to state trial the feder- majority’s fully analyze The failure to the al inquiry habeas court’s initial is to deter- Sykes implications of Williams and has led the alleged mine whether error was drawn significant approach two errors in its to the attention of the judge a First, inexplicably case. the majority If it timely fashion. is established that the to accord any significance fails the mo- seasonably issue was and squarely present- mistrial, petitioner by tion made the judge, ed to the trial then the rule cannot shortly prosecutor after the had succeeded operate to habeas bar review of the peti- placing jury, the before the tioner’s If claim. the issue was so not objec- than to treat it as an isolated other presented, the My then court must tion. recital of the of this case determine facts ensuing petitioner the discussion I see of what as whether has demonstrated analysis correct that will indicate the error is sufficiently prejudicial procedural motion carried its mistrial own warrant new trial and that he good has significance quite independent having presented cause for not contempo- during preceded events which it the trial. objection. raneous Second, majority’s view Williams and My opinion that in this case the en banc disturbing degree Sykes demonstrates a court has to ask failed either of these ques- to a deference state without so, tions. it done Had it would have con- to its regard underlying purposes and with- cluded evidence issue determining, out where it is claimed that raised, fully was timely and and was in fact to, rule has not been adhered whether of, disposed at trial. Consequently, the is- underlying purposes those have neverthe- sue is before properly this court. pur- been less fulfilled. I believe that a fair pose dissent of this is to make the inquiry reading Sykes only of Williams and not Williams by Sykes; mandated when discourages but in fact disallows sort of concluded, clear, inquiry it will be which the has accorded deference submit, Texas contemporaneous rule. the writ should issue. Q. right. III That’s Jerry Whenever home, your wasn’t mother told the defense by witness called The first staying he with his was dad out in Carls- step-sister, Sharon was bad, isn’t that correct? testimony she de- her direct Nicholas. right. A. That’s wearing was petitioner scribed what robbery. descrip- Her morning of the Q. You never went out to Carlsbad to one established in with the tion conflicted dad, see him with though, you? his did the state’s focus tion posed proceeded: month, home about a the house on Statler Q. witness of her I think.” The In other “[h]ow case. testimony, replied, prosecutor long words, month, Although this was the “[f]or had the seventh following exchange Street?”, he had in cross-examina- Jerry is that correct? a little over been to which living been Thus, Texas, he lived there with us for awhile 34-36). and then he went to A. No. A. Q. Jerry ^[*] the court he, Well, Sharon? ^[*] when we hasn’t lived at home permitted ^[*] lived out in see his father. ^[*] prosecutor ^[*] Snyder, much, ^[*] (R. having tion was overruled and the line of At that examination asked the from from Jerry one now, staying? He had been Carlsbad, New Mexico. A. A. Uh-huh. A. A. That’s Q. Q. Q. Q. He’d been with his father? ^[*] tell no but I’m home? home, was Is that How I’m not How Yes, I don’t know point defense counsel you questioning bearing ^[*] staying continued: sir. long long Sharon? that that’s where right. talking (R. 34). staying with his father in to note his Carlsbad, talking ^[*] on the case. The had with about the fact that exactly being ^[*] Jerry Jerry him, about New Mexico? defense counsel exception. or did some- irrelevant- objected ^[*] been how Jerry his name objec- long. gone ^[*] gone was point in the trial his pry quiring resumed his first ed. to her ry been available, (I. e., mother, Lois state funds at cross-examination, state’s asserted motive behind the robbery also revealed various economic resources possess clothing similar to that which the cross-examination was at the time he was in the penitentiary. The The defense deliberate efforts to into the claimed was worn question posed period knowledge, as to the home, to her the time petitioner’s strategy Nicholas. She testified was in prison. had of time the recent next called the Mrs. Nicholas?” This ex- son, recently “[h]ow incarceration in the prosecutor thus expose need of immediate uncovering the robbery). whereabouts dur- prosecutor the robber. She been incarcerat- rebutting It was at this long the fact that whereabouts prosecutor’s promptly had Jer- the fact did not knew7 by began that, On in- Well, that’s what I knew. A. change followed:

A. For about a month. Q. For about a month?

Q. your you Did mother tell that was A. Yes. Jerry staying, where Sharon? Q. He

A. That’s what she told me when Jer- arrived home sometime after 20th, ry April wasn’t there. 1966? prosecutor purpose knew these facts is ex- fact of

7. That the incarceration for the where, pected, punishment stage enhancing at the of this sentence under Tex- bifurcated he intended to and did use the as law. juncture, At this questions a few did. short af- A. He ter the penitentiary evidence had been de- (R. 44). been? Q. had he Where elicited, liberately petitioner moved for immediately objected to counsel Defense The court perfunctorily mistrial. denied grounds. The ob- hearsay the motion. and the overruled jection was continued: IV been, Q. he Mrs. Nicholas? Where had the first penitentiary. step With of the Williams-Sykes had been in

A. He mind, inquiry in the majority has deter- Carlsbad, then, Q. He had not been petitioner mined that did not make a father, had he? with his timely presentation to the state trial he had been. Previously, A. error occasioned the admission of Q. gotten peniten- out of the He had the highly prejudicial evidence of his recent April, 20th of 1966— tiary on the imprisonment. Thus, Honor, Your the Prose- MR. GREEN: cludes, is now foreclosed from testifying now. cutor is obtaining a new trial because he inexcus- Q. Jerry didn’t come home until some- ably neglected comply with the Texas April, the 20th of is that time after contemporaneous objection rule. Inferen- right? tially, the majority opinion points to two right. That’s A. operations of the rule in this case: one Q. And he had been down to Hunts- which directly operates as an inexcusable ville State Prison?8 default, procedural the other which indi- Right. A. rectly operates. so The direct operation Q. said, thing you What’s the first results from the fact that defense counsel Nicholas, you the officer told Mrs. when opportunities two either to avoid or to Jerry had done? what damage reduce the done the prejudicial Jerry say A. He didn’t for sure that evidence, yet did not utilize them.9 The my boys’ pictures did it. He took both operation, assume, indirect I must w<ho because he didn’t know had done it. premised upon the notion that because the Q. you bring pictures Did those object did not question, you today? answer, move to strike the request sir, kept A. No I didn’t. He two of limiting instruction, in some brought my boy and he who is in them way right forfeited his to move for a mis- picture back to me about the Marines stage trial at a later of the proceeding. three weeks later. view, majority’s In the contemporane- through you I’ll ask to look these ous directly operated to work would, Nicholas, pictures, if Mrs. inexcusable default. The Jerry’s picture any in of see if see majority observes that “a timely objection these? prevented could have the introduction of A. Yes. (of imprisonment). This, evidence”10 (R. 44-46). picture is this? Which course, of begs question of whether petitioner’s motion for mistrial promptly question immediately pre- April. and the two had been 8. This his arrival at home in ceding prosecu- Second, majority it further demonstrate that the ques- states that once the just upon ques- answered, tor did not tioning. stumble this line of disclosing petitioner’s tion was He knew in advance that imprisonment, recent counsel could have re- Prison, was in Huntsville State and was re- prejudicial moved “some of the effect” of the April on leased by moving by requesting answer to strike it or limiting a instruction. Counsel did neither. First, kept counsel could have it is said that jury altogeth- prejudicial evidence John, 10. St. 544 F.2d at 895. by objecting proper grounds when Mrs. er initially asked where Nicholas problem to the of or for a limiting (2) alerted the trial instruction and the role a fair trial before the according petitioner of a motion for mistrial. The roles are exposed very it had been to a jury same; after clearly not the majori- and it is the damning piece of evidence. It cannot be ty’s distinguish failure to between them objection— that a well-articulated gainsaid has, my opinion, contributed to the prosecu- attention to the calling the court’s result the court has reached today. objective pressing petitioner’s illicit tor’s The majority’s treatment his recent step-sister and mother about objection mistrial motion as a mere is by no might have aborted the line whereabouts — means the disturbing aspect most of its consequent questioning and error. r,analysis, however. The majority quite But this does not address the of a clearly implies that the merits peti- of this remedy great once evidence of defendant’s tioner’s mistrial motion were somehow af- majori- The prejudice has been introduced. fected his failure proper to make that “at no time did counsel ty also observes temporaneous objection to the initial intro- stricken or that ask that the evidence be a severely prejudicial duction of evidence. given” limiting instruction be and “a taken, step Once this it seems to me that in- give limiting motion to strike or to a the majority has accorded the contempora- prej- cured some of the struction could have objection neous rule a form of sig- indirect me, effect.”11 To this observation udicial nificance which is both short-sighted and implies objection preju- that counsel’s to the illogical. An inescapable corollary of the evidence, damage after the had been dicial majority’s position is that where a state eyes jury, done in the would have provides a device for curing timely appropriate. an Such ob- prejudice thereby permitting the con- submit, jection, was made in the form of tinuation of the a defendant must petitioner’s motion for mistrial. avail himself of that device as precondi- majority refers to the motion for subsequent (and tion to a contemporaneous) “objection” mistrial as an which came four mistrial motion made when it ap- becomes questions too late. To the extent that de- parent cannot be cured. explicit fense counsel’s motion for mistrial As for the majority’s suggestion that pe- objection as a mere can be construed titioner should have moved to strike the evidence, reception court’s of inadmissible it evidence or obtained a curative instruction late, perhaps did come too late to enable in order to alleviate what it characterizes as preserve the constitutional er- prejudice, some of the I must confess that I proceedings. he asserts in these ror great have difficulty perceiving any utili- mistrial, however, motion for was not a ty in advocating, much less requiring, Instead, mere evidence. use of such a procedure in the conduct of a plainly sought the motion the termination fact, criminal trial. in the present timely the trial12 and was its own state of the practice law, art of the right. Yet the fails to consider lawyer defense who followed such proce- independent significance. By the motion’s acquiesced dure and in the continuation treating petitioner’s motion for mistrial as a of a objection” injection lingering prejudice tainted with might “belated to the state’s well be imprisonment pro- incompetent. the fact of into the condemned as Coun- plainly sel would ceedings, majority erroneously perceives duty have the to move for (1) a mistrial as the same: roles of ensure that preceding conviction, introduction ev- would not lead to his client’s subsequent motion to precisely idence and of a strike that is petitioner’s attorney what Id. prosecutor brought that the has out the fact penitentiary. that the defendant the precise (R. 88-89) 12. The words counsel used are: Honor, time, Your the defense makes a motion for a mistrial due to the fact denied; timeliness, (5) this case. In terms of counsel did in moves for a mistrial plac- had succeeded once ground on the prejudice that inherent prejudicial jury, evidence before the ing the in the evidence cannot be removed from the made. Yet the motion for mistrial was jury and that a fair trial will not result. contempora- the Texas majority applied prejudicial When the evidence placed be- objection rule in a fashion which neous jury fore counsel moves to and strike it strips efficacy. analy- of its No motion requests cautionary instruction, or a he tac- and, this result justify sis is offered to admits, itly suggest, I that the court’s inter- therefore, only speculate I can as to the prejudice vention can eliminate the so as disregard utter reasoning underlying this of sufficiently to ensure a fair trial for his legitimate procedural the motion as a de- client. a which vice to abort criminal trial Where, here, as prejudice some will re- should not be continued. I think it safe to notwithstanding main the court’s efforts to did not say majority consider the error, cure the counsel is left with a Hob- it untimely, motion for would have been majority’s son’s choice under the application counsel impossible to have hand, Texas rule. theOn one if he grounds preju- moved for a mistrial on moves to strike the evidence or for an in- prejudice dice before the became manifest. struction, both, and either or both are Thus, assuming timely motion was granted, immediately can he then ask for a proper grounds for a mistrial were ad- so, mistrial? utility If what was the they vanced —and were —it must be that court’s statement to the jury a moment the motion was ineffectual because of coun- instructing earlier it disregard the chal- sel’s failure earlier in Mrs. Nicholas’ cross- me, lenged evidence? To the answer is objections the other examination to make obvious. Counsel cannot run the risk of majority lacking: proper finds to be having the trial court hold him posi- to the objection to the which elicited the tion moving against counsel assumes in (the prior imprisonment majority fact of evidence, e., i. prejudice petitioner’s hearsay objection treated as a can be removed nullity); appropriate a motion to strike the instructions. Sure- testimony request limiting ly justified or a for a in- the court would then be in con- cluding struction.13 that a cautionary instruction would suffice to prejudice. eliminate the On the place To such conditions on a motion for hand, other to avoid the unfortunate conse- mistrial, submit, logically justi- cannot quence continuing the trial with some fied. If counsel must meet such conditions remaining still jury, it protect right order to his to move for a seems to me competent counsel must mistrial when strategy faced with the trial adopt the alternative choice: abandon the here, presented following sequence thought moving to strike or for an in- (1) events would have to occur: defense struction and move for a mistrial instead. objects relevancy grounds counsel on If it is clear that this alternative must be prosecutor’s question which seeks to elicit accused, pursued protect then it is prior imprisonment; (2) the evidence of intellectually correct one. Yet the Tex- overrules the and al- in; as rule (3) deny lows the evidence to come would have the court the mo- defense moves tion for preced- counsel to strike evidence mistrial because it was not grounds relevancy ed by procedural and re- device that counsel could instruction; quests limiting (4) the motion not in good employ. conscience majority opinion It is pointed not clear sufficient. IAs have out earlier in the IV, part specifically whether both accompany- text of the text devices — necessary supra, and motion to strike —were under note intimates that preserve petitioner’s cautionary Texas law in order a motion to strike or for a instruc- opinion timely claim appropriate, of error. One could read the tion would have holding alone, standing preserve the invocation of either device is the error.

177 strongly occurring. con- from The Supreme present The Court state’s posi- tion, “sport- a trial is a ample the notion that demned time to event,” prevent development “poker game” approach, prejudice, with a ing quite inconsistent with premium. is at a gamesmanship strategy where See 78, 82, adopted which, state at Florida, 90 399 U.S. S.Ct. be Williams success- ful, Brennan, depended upon (1969); petitioner’s practical The in- 26 L.Ed.2d ability to make timely objection. Event Sporting Prosecution: Faced Criminal this chameleon-like Wash.U.L.Q., behavior Quest for Truth? 1963 state record that demonstrates is the antithesis of the incur- 292. This notion prejudice able of the state’s deliberate cre- which lies at the heart of the philosophy ation, the majority concludes, nevertheless Bar Association American Standards law, as a matter could foregoing analysis Criminal Justice. As properly not procedure invoke the mistrial demonstrates, contemporaneous the Texas having without first attempted to remove gamesman- rule became a rule of prejudice some of the by moving to strike case, in not a rule to facilitate the ship this the evidence or for a cautionary jury in- truth. I do not overlook the fact search for struction. resolu- promote that Texas is entitled tion of constitutional issues at trial em- V contemporaneous objection rule. ploying judicial demonstrated, As I have purposes economy, already For obvious the ma- jority’s application seeking the state has a valid interest of the Texas contempo- raneous aborting patently or cure trial error short of illogical. avoid Furthermore, fact, I however, submit that it the trial. The that Texas runs counter to the clear rationale of very the motion for mistrial dem- also authorizes cases— Williams Sykes upon which the acknowledgement onstrates its that not all ma- — jority purports rely. by contemporane- trial error can be avoided objection addressed to the ous introduction part II, In supra, pointed out that Wil- of inadmissible evidence. For the situation Sykes liams and direct that a federal habe- objection may where an be ineffective to court, as when faced with a claim of inex- protect rights, defendant’s fair trial default,, cusable inquire must provides state for the mistrial procedure. whether the state rule in question has been permitting In a defendant to move for a applied legitimate to further a state inter- mistrial the state accommodates both the est. Insofar the validity of the Texas rights defendant’s fair trial and the state’s contemporaneous objection rule derives being barred, jeopardy interest in not on from preventing its role in the abortion of a grounds, retrying from the defendant. trial, that role longer could no have possibly hand, purpose the case of the con- been served once the state incurably preju- temporaneous objection rule —to avoid hav- diced the case before the jury. longer to terminate the trial —could no curing prejudice means of prejudice served once the manifested permeated which trial was injecting itself. The state was bent on proceedings. to abort the Since the state at Any prosecutor into the trial. point had no legitimate interest greater realizes that the im- insisting upon carrying the trial to a ver- evidence, pact rely his the more he must dict, the majority, asserting surprise place jury. it before the gone through should have prosecutor here was not about to advise predicative sequence objections and mo- petitioner, judge, plan strike, or the trial of his tions to is “giving effect to the con- stealthy action, temporaneous objection to trial. His course of rule for its own degree coupled high spontaneity with the sake requiring] ‘resort to an arid ritual [and ” trials, characteristic of criminal meaningless Henry form.’ v. Mississip- heavily, my opinion, 443, 449, pi, 564, 568, tributed to defense 379 U.S. inability prevent (1965). counsel’s L.Ed.2d 408 case, Sykes injected into the trial of this the been analysis, its the of the course In Henry proposi- the it could support only way to in which have cured cited Court inquiry habeas court’s a federal declaration of a mistrial.14 tion that was the of the con- examination must subsume rule is procedural a state

text in which VI Henry 2504. As at applied. See 97 S.Ct. conclusion, step In first of states, itself Williams-Sykes inquiry operation- into the whether inquire we must every case [i]n contemporaneous the Texas procedural forfei- the enforcement of a in this case reveals that the consitu- rule inter- [legitimate] a state such ture serves corpus tional error before us in this habeas not, procedural the state it does est. If appeal seasonably squarely pre- was permitted to bar vindi- ought not be rule at the trial in state court. sented Accord- rights. federal important cation of Williams- step the second ingly, (emphasis at 567 at U.S. Sykes inquiry, whether has shown omitted). added) (footnote failing present cause for to shown then, Henry, may a state not insist Under court, inapplica- error to the state trial procedural rule unless compliance with a ble.15 applied legitimate to serve a the rule Contrary majority’s interest. state writ, grant respect- I would I Because logical no less there can be position, —much fully dissent. interest legitimate applying —state a defendant to require employ pre- devices in order to litany right to move for a mistrial where

serve the prej- devices cannot cure the resort to such case. had udice in the Once trial, yet underlying rationale of Wil the Court found a 14. Aside default in his failure already Sykes challenge dis which I have liams cussed, the voluntariness of his confession very say little about the those cases “at trial or not at all.” 97 at S.Ct. 2506. To during prejudicial me, specific point simply square a trial at which these cases do not with the majority’s attention of the trial hypertechnical approach error must be called to the formal and preserve potential judge in order to timeliness. The timeliness must be Rather, require these cases habeas review. only pragmatic squarely one: was this issue presented the state court be brought point before the trial at some during alleged point error at some trial. during the and did he have a chance to majority’s approach to this timeliness issue rule on the issue? When I examine the record hinges wrongly, upon the form of I mind, questions — think — in this case with those I issue; particular device used to raise the readily conclude that mistrial words, objection is made if a belated other timely. motion was The motion was made a timely, motion to strike would where a questions scant four after the versa, mag then an error of constitutional vice questioning. terminated his line of may major abandoned. The nitude be deemed language ity approach in the face of takes this last 15. One criticism of the result reached think, which, Sykes militates in Williams and court, must be made. The district against view of timeliness. In such a restricted granting writ, expressly reserved a cases, which of those a device existed each peti- second claim raised in habeas prevented altogether. In have the error would improp- tion. claim That asserts that the state Williams, prejudice was manifest before erly prior juvenile introduced evidence of a empaneled. in that punishment stage conviction at the of the trial. standing objected trial in have case could court, panel Both the and the en banc in revers- actually preju prison garb before he was well writ, grant have not remanded diced, pro yet an inexcusable the Court found the case to the district court for consideration no such after it noted that cedural default objection that, second claim. I submit any before or at was made “either majority’s opinion operates extent that the (em during at 1695 the trial." 96 S.Ct. time preclude petitioner’s reapplication for habe- added). Sykes, phasis could claim, truly as relief on his second the result is hearing requested v. Denno have a Jackson justice. miscarriage stages to the commencement several

Case Details

Case Name: Jerry St. John v. W. J. Estelle, Jr., Director

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 17, 1977

Citation: 563 F.2d 168

Docket Number: 76-1178

Court Abbreviation: 5th Cir.