*2
COLEMAN,
FAY,
Before
RONEY and
Judges.
Circuit
RONEY,
Judge:
Circuit
Harris,
Oscar
Jr.
convicted
degree
in Alabama of
in the second
murder
forty-five years imprison
and sentenced to
ruling
ment.
the merits of
Without
claims,
appellate
Harris’
the Alabama
court
Harris did
affirmed the conviction because
preserve
for review
properly
error
stating
objecting during trial or
with ade
handle,”
through
for
“black
Harris fired
quate
his motion
specificity
door,
door shut
open
then slammed the
Harris v.
347 So.2d
new trial.
inside
stayed
denied,
police.
and called the
Harris
(Ala.Cr.App.), cert.
poliсe
until the
arrived.
house
(Ala.1977).
and his
Stating he
for himself
was afraid
By
of federal habeas
petition
writ
*3
Wayne’s erratic
of Harold
family because
that he had been
corpus Harris asserted
pistol
behavior,
the
Harris testified he fired
prejudiced by improper cross-examination
It
Wayne, not to kill him.
to scare Harold
concerning
statement
when he testified
a
that Har-
only
police
after the
arrived
was
year old
given
ten
son
allegedly
by Harris’
had killed
“warning shot”
ris learned his
he was denied his
police
to the
and that
Wayne.
Harold
key
right
constitutional
to confront
elicited
witness.
The cross-examination
corpus relief is
petition for habeas
Harris’
responses that what
repeated
from Harris
prosecutor’s
the
portion
founded on the
son’s
suggested
the
was Harris’
prosecutor
below.
set forth
cross-examination
Harris
incriminating version of the events
a
have
“Q.
you
you
Let
ask
this. Do
me
killing
the
was a
evening
occurred on the
Tracy
the
Harris?
by
son
name
prosecutor
lies.
did not call
series of
"A.
do.
Sure
witness,
prosecutor
son as a
nor did the
“Q. How
is he?
old
produсe
either
statement
or introduce
Tracy
“A.
is about ten.
alleged
given
police by
to have been
Tracy
you
not
“Q. Do
know whether or
son.
at
down
gave
police
a statement
finding
On
did
the defendant
not deliber-
Department?
Police
ately bypass
procedures,
state
had cause for
to that.
Now,
object
we
“MR. ALLEN:
noncompliance
procedures
with state
to Police Head-
“Q.
Tracy taken
Was
prejudiced
was
by the cross-examination
quarters?
coupled
prosecutor’s
with the
failure
call
guess
“A.
I
he was.
witness,
defendant's son as a
the dis-
not he
you
or
“Q. Do
know whether
trict court held that
petition
Harris’
there?
gave a
down
corpus
habeas
relief
was
barred
know,
I don’t
sir.
“A.
Wainwright
72,
Sykes,
v.
433
97
U.S.
S.Ct.
was
Okay.
shot Harold
“Q.
you
Before
2497,
(1977)
Noia,
53
Fay
L.Ed.2d 594
your
leave
door?
ready to
getting
Harold
372
U.S.
9
S.Ct.
L.Ed.2d 837
No, sir, he wasn’t.
“A.
(1963). We
grant
affirm the
of the writ of
son, Tracy
that he
“Q.
your
if
said
So
corpus.
habeas
was,
lying?
he would be
eight
witnesses who testified
None
Tracy
lying.
“A.
at trial actually saw defendant Harris fire
“Q.
Tracy
when
Where
Wayne
shot which killed Harold
Wash-
was fired?
ington. Only
allegedly
defendant’s son
saw
dinner,
Eating
“A.
sir.
shoоting.
“Q.
Tracy
And
he was
if
evening
On
the incident Harold
telling some-
living room he would be
Wayne Washington approached the door of
thing that
not true?
attempt
Harris’ house in an
to deliver a
he
my knowledge
To
would.
“A.
message to
Harris. Harris testified
told
Well,
living room or
“Q.
he in the
Wayne
Harold
to leave.
In response Har-
not?
old Wayne repeatedly
Harris,
shouted to
”
just
you was on the couch
“A.
I
told
I
me .
“shoot
and reached towards
door.
knock came
thought
what Harris
black handle
Tracy was?
“Q.
you
Do
know where
pistol
Wayne’s
of a
shoved into Hаrold
eating.
He
be
the kitchen
“A.
had to
house,
pants.
got
Harris then went into his
living
was in the
pistol,
“Q.
Tracy
and returned to the door. When
If
said he
be true?
Wayne again
would
you,
Harold
reached towards the
room with
No,
“A.
it wouldn’t.
The court held there was
preju-
cause and
dice under
“Q.
that standard.
Okay.
Tracy
ifAnd
said that when
came
the door
specify grounds
failure to
for the
talking
you
you
told him if
trial,
motion for new
the court
held to be
going
gun
don’t
I am
leave
post-trial default
involving
decision exer-
blowing,
start
would not
true?
cised
the defendant
reviewable under
liе,
“A. That
be a
would
sir.
I have
Noia,
bypass”
“deliberate
Fay
rule of
taken this oath
swearing
am
398-399, 438,
court cannot Circuit deciding Judge, dissenting: be reversed for procedural defendant’s default was not a recently Statistics released the De- bypass barring deliberate corpus habeas re- Health, partment of Education and Welfare Fay view under v. Noia. show that 0.6% deaths in the United The result is the same even if defеndant’s States in 1940 By resulted from murder. motion for new trial is reviewed under the 0.7%, 1968 the rate stood at an increase of prejudice cause and standard in Wain only eight twenty years. 0.1% in In 1978 wright Sykes. Prejudice plain. is No 1.1%, the rate stood at an increase of more witness who testified at trial saw the kill than 50% a decade. In what assumed ing. The case turned on credibility time, to be a enlightened more in a better defendant’s that he acted in self- populace, nearly educated a citizen has prosecutor’s defense. The questions during having twice the chance his life stolen cross-examination suggested that another forty years murder than he nearly ago. eyewitness story told a contrary to the de According to the Report Associated Press fendant’s. suggestion was all the more persons were murdered in Atlanta in damaging because prosecutor’s “source” 1978and there have been 195 to October was the defendant’s own son. The district 20 in 1979. court’s ruling that the defendant suffered may While individuals differ to the prejudice ineradicable is consistent with cause of this Madison intolerable increase in the 55 Ala.App. murder, denied, incidence of reprehensible cert. the most 294 Ala. 318 So.2d337 *6 (1975). crimes, the difficulties encountered in securing a preserving conviction and it Whether there was adequate cause for against collateral attack in the federal the failure to elaborate on defendant’s mo courts is part picture. bound to be a of the tion for new trial turns on whether a find The be Constitution must observed but it ing of cause safeguards against a “miscar contains no mandate that it stretched for riage justice,” Wainwright Sykes, v. 433 the guilty rеlief of criminals. The clearly 91, U.S. at 97 2497, S.Ct. and whether it can gone “per federal courts have from se” to presumed strategic no advantage “per se” to such an extent that those who gained can be from failure to comply with have respect no for either the law the procedural the Estelle, rule. Jiminez v. 557 506, encouraged to F.2d Constitution are believe that (5th 511 1977). Cir. The failure of impotent the state Harris courts are now to deal and comprehend his counsel to the importance punishment out for crime. procedural of the requirements a attending motion for new trial under the Supreme The a blow at this Court struck facts of this case adequate cause raising recognized turn of events when it the harm- an injustice issue of without compromising California, Chapman less error rule in 386 the legitimacy of procedure. state See Sin 18, 824, (1967). 87 17 705 U.S. S.Ct. L.Ed.2d cox States, 876, United 571 F.2d 879-880 case, Magistrate In the the rec- present (5th 1978); Cir. Brewer, Rinehart v. ommended as follows: F.2d (8th 1977). n.6 Cir. The dis trict court a careful de- Magistrate found the The has made procedural default of the defendant trial study and his tailed state tran- attorney was Harris’ not a tactical testimony maneuver since script, including neither all of apparently grasped importance him, of specifying against and his own on this, for a motion for new trial. Upon direct and cross-examination. appellant’s half-brother. com- On one or two it is concluded error Harris that the night, prior Sawyer occasions to this Mrs. beyond a reasona- plains of harmless getting appellant about nothing to his contacted ble doubt and contributed a Joel that she wanted to see message to conviction. him. married he and his Joel was but invali- disagreed The District and Court along “getting wife On this were bad”. conviction, prompted this which dated particular Sawyer Mrs. asked Aar- night, appraisal the State. Based on appeal go get Washington appellant. on record, agree Magistrate. of the appellant Sawyer Mrs. wanted see the great- I have the majority, The for whom However, and Joel. Aaron did not esteem, predi- possible deference and est go. language affirmance on lifted catеs deceased, brother, walked Aaron’s State, Ala.App. Madison over car and Aaron asked to Aaron’s (1975). Respectfully, point I must go appellant Sawyer. get the for Mrs. expressly that Madison was decided out aunt, wife, The his his appellant, particular facts and involved its own preparing supper his were children controlling issue law. quite different “loud”, an appellant heard a Moreover, language quoted by “abrupt” knocking on door. his front majority the Court stated Alabama door, When the deceased opened hе improper prosecutors statements of are re- told is a wants to see girl him that “there upon impact versible “where their The told the appellant out here”. prejudicial” or “where its natural “nothing to deceased that he didn’t want tendency is to the finding influence of the that, got my do ... I have with all jury”. Additionally, the statements got time family wife here and I ain’t objected to, were Madison whereas in the appel- . none of that. .” case no objection instant was made. lant the deceased to off his then told I would hold that the statеments Har- not leave. porch Wayne did but Harold case, unobjected to, preju- ris’ were neither the de- appellant testified that they tendency dicial nor did have to influ- me,” said, “Nigger, ceased then shoot finding jury. ence the where the pants” he into his “kept going The facts of case present were set appellant a black saw handle forth Appeals, Alabama Court of fur- thought pistol. appellant was a follows: kept ther Harold testified that may 26, 1976, The shooting occurred on everything” “bubbling on the front porch appellant’s wandering”. The eyes “rolling and *7 house located Heights in the Mobile sec- he appellant understand where “didn’t tion of the City Montgomery. kept coming from” and the deceased the me”, While has appellant raised the shoot and would repeating “Nigger, question of sufficiency the of the evi- not leave.
dence, recite, there is no need to in min- and appellant The went the closet detail, testimony presented ute the the de- got pistol. When his .22 caliber each witness. his put “his into again ceased hand evening
On the the shоoting, Mrs. that like pants”, appellant the “shot out Sawyer Valerie Washington, and Aaron allegedly him and shut the door” behind the brother the to be soon deceased shooting into keep the deceased from Wayne Washington, sitting Harold were hitting his wife or one the and house listening They in Aaron’s car music. that testified appellant his The children. parked the appellant’s deceased, in front of to shoot the he not intend did The house. deceased was next talk- door away and just but fired to scare him ing to Mr. and T. C. Thomas his son. shooting house. keep into the him been out he had Sawyer, separated,
Mrs. The deceased cried that who was shot, street, and died. with” the fell “going Welch who was the ran into Joel shot, After firing appellant one the tes- At the police evening, station later that police. tified he called that the “A lot of interrogated appel- Detective Wood the people” gathered outside and when the advising lant after constitu- him his appellant talking “get- heard them about rights. tional appellant At that time the ting gun”, lights the he turned the off in freely voluntarily gave signed and a Next, according house. to the appel- properly which was admitted lant, Washington Aaron pulled up near judge. into evidence the trial his house and fired a shot which came The substance of that statement was through the lodged kitchen window and appellant sitting in the liv- in the kitchen wall. appellant The re- ing room of his home when Wash- sponded by firing once out living ington knocked on the front door and told room window. the appellant Sawyer that Valerie want- When police scene, arrived on the ed to see appellant him. The told Wash- they found large gathered crowd three ington “go my on with that. Get off or four houses down from the scene of porch ., . my my . wife here and shooting. The deceased was lying in order, nothing the street. On children and I like don’t want appellant emerged said, from his house. Washington He was that.” “Nigger, imme- then diately placed handcuffed patrol and in a me”, pants shoot his or and reached into car. patrol Before the car left for the appellant under his The then stat- shirt. police station, appellаnt was advised ed that he: of his rights constitutional which were “ . . stepped . back and got read to him from a standard Miranda pistol from the closet and went back to rights form. the door. He again reached in his On way station, no one inter- pants again, go on, Nigger viewed or interrogated appellant. En shoot me. I shot once and out the door route appellant voluntarily stated quickly just I closed wood door. the deceased “had threatened him wanted to scare him. even didn’t and he had wanted to shoot to warn him mean to hit him.” awаy from the door and that appellant The then stated that he turned man; not intended to shoot the that if he lights had shot out looked out the somebody, all front he did not intend to shoot appellant, him”. The ac- Washington window. He saw Aaron cording to Montgomery City Police Offi- gun “in and shot one more time cer Eckerman, Frank H. further volun- somewhere”, ceiling “to scare them teered the information that he was inter- and let not to shoot in the them know ested in getting rid of some of drug . appellant, house in his addicts neighborhood. appel- the deceased statement said that he shot lant denied making this last statement “thought pistol because he he had a and stated that he did tell Officer Ecker- me, reached in Nigger, he said shoot man that something wrong with the pants”. appellant did not want eyes of the deceased. to kill him just “wanted to scare him Captain Moore, I. B. a detective for the appellant or wound him”. Further *8 Montgomery Department, Police found half-brother, Joel, stated that his had told a .22 pistol living caliber in the room of him Sawyer that Mrs. him and liked the appellant’s house. Cаptain Moore go appellant wanted to with him. turned pistol, along with four live Washington felt like the were brothers spent hulls, rounds and two over to De- trying to tear up his home. Cody tective Wood. Detective Wood also A toxicologist, Roper, state Dr. Richard examined the appellant’s inside of the performed a post-mortem examination house and observed “a hole in the wall in opinion upon kitchen It was his appeared by to be deceased. made a bullet”. hemorrhage that death resulted Nevertheless, when the defendant took single gunshot with a shock associated long rifle bullet prosecutor wound from a .22 caliber behalf the the stand in his own lodged upper portion of the which very statements as a to use those attempted Roper deceased’s chest. Dr. did not un- An cross-examination. basis for weap- type dertake to determine what jury and the promptly sustained rifle) fatal (pistol on or had fired the disregard the specifically instructed body bullet recovered from the deceased’s questions. a .22 stated have been but cоuld The conviction was reversed: pistol. caliber go beyond all find this statement We I look first to the nature of the trial examinations, cross legitimate bounds of spawned Madison: case. of this circumstances under the throughout peppered trial was con- in his zeal to Attorney The District counsel; arguments with heated between ef- testimony, in appellant’s tradict judge with the trial admonitions from to the statement testified as fect himself counsels; by both threats to hold counsel previously had appellant’s son which an contempt; by an оffer from As into evidence. denied admission been attorney to defense assistant district discussed, that a any inference previously argument counsel to settle their outside appel- quarrel place taken between atmosphere fisticuffs. Such was wife, threat- that he had throughout lant and his or much of the trial. Counsel appellant repeated objections shooting, made way prior to ened her in prosecutors that remarks of the jury in reach- be most critical to improper, being were one such remark degree murder ing a verdict of second hearing made outside the the court therefore, We, opposed manslaughter. reporter, but the hear- supposedly within par- these opinion are that under essence, ing jury. appellant of the In circumstances, prompt ticular even contends that while the trial court sus- of the trial instructions and conscientious many objections tained and in- of his insufficient jury court to the the jury structed not to consider some of of the prejudicial effect eradicate nevertheless, made, the statеments re- jury. minds of the statement from the presence marks were made in the Ala.App. Renfroe v. See capable being which were not So.2d 692. eradicated from their minds. observed that in Madi- It must further be must, therefore, carefully This Court son, little the defendant’s the victim was light complained review the conduct of in wife, who daughter. Both he and his appel- of the authorities cited both the time, testi- same seriously wounded at the balancing appellee, presump- lant and contradiction, that fied, live without tions in favor of the correctness of the accidental. shooting was against verdict the effect such conduct appellant’s receiving would have on a fair this time is we have before us at What trial. case. simply not Madison this, cap To all as if that were not with, slightest begin To there is not enough, prosecutor part as a of his Har- corpus appellee, doubt that our habeas testimony evidence in chief to use the tried ris, di- deliberately in the deceased’s Investigator, of a his notes to State rection, that he killed with such success boot, as what two hе had been told spot. Deliberation dead on children, five, ages four and about how justifi- legal but excuse issue in Madison The trial court Madison homicide occurred. defense. cation was Harris’ rejected because out of hand Tracy, the whether It no difference made age incompetent children of this *9 son, eating or in the was dinner court, year ten old testify they even in let if had been might have said Tracy hearsay. living room. What alone being collaterally upset about two shots fired be no im- should not allowed portance because defendant admitted this conviction. shots,
that he did fire two “one out the door facts, its own far Madison decided on and one over Aaron’s head”. here, and we have different from those Tracy might What have said about the legal issue. fundamentally on a different getting ready deceased to leave door on the upset I would not this conviction shot, being when he was told that if he guaran- ground federally that the killer’s did not leave going the defendant was rights have been violat- teed constitutional get gun his blowing, and start made no prеjudice. ed his difference, go either. The defendant did pistol. respectfully The deceased was dissent. chest, upper not in the back as or side
would have happened if were in the act leaving. Moreover, the shot had to have
been fired at or near level to have taken
effect in the of flying chest instead harm-
lessly over the visitor’s head. course,
Of defense counsel knew that the prosecutor had Tracy not called stand during presentation in chief. It was FINGAR, Plaintiff-Appellant, Robert E. extremely unlikely that he would have been left off if he willing testify any-
thing of value to the State. If defense SEABOARD COAST LINE RAILROAD objected counsel had and the COMPANY, Virginia Corporation, sustained, been surely been, it must have Defendant-Appellee. that would end By object- matter. No. 79-1491
ing, this left the matter alive and allowed Summary Calendar.* the opportunity closing argument to tear prosecution talking to shreds for about Appeals, United Court of States what Tracy said and producing then not Fifth Circuit. him in rebuttal —a trick so unfair that it would have powerfully had a negative ef- Nov. 1979. fect on jury. We do not have the oral arguments before us we do not know happened
what but it does take all that
much experience in the trial of homicide
cases to know what well hap- could have
pened. least, At per cannot se
that defense counsel did not know what he doing when he left the matter available exploitation. further up,
To sum the defendant had deliberate-
ly fired in the direction the unarmed
deceased and him a killed at time when he peaceful, unwise,
was on a although mis-
sion. The defense had that Harris
acted in lawful defense of himself others
then and present. subject, there On this
the undisputed physical spoke facts questions, to,
themselves. unobjected
* Fed.R.App.P. 34(a); 5th Cir. R. 18.