Oscar Harris, Jr. v. Larry Spears, Warden, Staton Correctional Center and Charlie Graddick, Attorney General for the State of Alabama

606 F.2d 639, 1979 U.S. App. LEXIS 10394

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 16, 1979
• Docket: 79-1184
• Status: Published

Opinions

RONEY, Circuit Judge:

Oscar Harris, Jr. was convicted by a jury in Alabama of murder in the second degree and sentenced to forty-five years imprisonment. Without ruling on the merits of Harris’ claims, the Alabama appellate court affirmed the conviction because Harris did not properly preserve error for review by objecting during trial or stating with adequate specificity the grounds for his motion for new trial. Harris v. State, 347 So.2d 1363 (Ala.Cr.App.), cert. denied, 347 So.2d 1368 (Ala.1977).

By petition for writ of federal habeas corpus Harris asserted that he had been prejudiced by improper cross-examination when he testified concerning a statement allegedly given by Harris’ ten year old son to the police and that he was denied his constitutional right to confront this key witness. The cross-examination elicited from Harris repeated responses that what the prosecutor suggested was Harris’ son’s incriminating version of the events which occurred on the evening of the killing was a series of lies. The prosecutor did not call the son as a witness, nor did the prosecutor either produce or introduce any statement alleged to have been given the police by the son.

On finding the defendant did not deliberately bypass state procedures, had cause for noncompliance with state procedures and was prejudiced by the cross-examination coupled with the prosecutor’s failure to call the defendant's son as a witness, the district court held that Harris’ petition for habeas corpus relief was not barred by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) or Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). We affirm the grant of the writ of habeas corpus.

None of the eight witnesses who testified at trial actually saw defendant Harris fire the shot which killed Harold Wayne Washington. Only defendant’s son allegedly saw the shooting.

On the evening of the incident Harold Wayne Washington approached the door of Harris’ house in an attempt to deliver a message to Harris. Harris testified he told Harold Wayne to leave. In response Harold Wayne repeatedly shouted to Harris, “shoot me . . ” and reached towards what Harris thought was the black handle of a pistol shoved into Harold Wayne’s pants. Harris then went into his house, got his pistol, and returned to the door. When Harold Wayne again reached towards the “black handle,” Harris fired a shot through the open door, then slammed the door shut and called the police. Harris stayed inside his house until the police arrived.

Stating he was afraid for himself and his family because of Harold Wayne’s erratic behavior, Harris testified he fired the pistol to scare Harold Wayne, not to kill him. It was only after the police arrived that Harris learned his “warning shot” had killed Harold Wayne.

Harris’ petition for habeas corpus relief is founded on the portion of the prosecutor’s cross-examination of Harris set forth below.

“Q. Let me ask you this. Do you have a son by the name of Tracy Harris?

"A. Sure do.

“Q. How old is he?

“A. Tracy is about ten.

“Q. Do you know whether or not Tracy gave the police a statement down at the Police Department?

“MR. ALLEN: Now, we object to that. “Q. Was Tracy taken to Police Headquarters?

“A. I guess he was.

“Q. Do you know whether or not he gave a statement down there?

“A. I don’t know, sir.

“Q. Okay. Before you shot Harold was Harold getting ready to leave your door? “A. No, sir, he wasn’t.

“Q. So if your son, Tracy said that he was, he would be lying?

“A. Tracy would be lying.

“Q. Where was Tracy when the shot was fired?

“A. Eating dinner, sir.

“Q. And if Tracy said he was in the living room he would be telling something that is not true?

“A. To my knowledge he would.

“Q. Well, was he in the living room or not?

“A. I just told you I was on the couch when the knock came on the door.

“Q. Do you know where Tracy was?

“A. He had to be in the kitchen eating.

“Q. If Tracy said he was in the living room with you, it would not be true?

“A. No, it wouldn’t.

“Q. Okay. And if Tracy said that when Wayne came up to the door and was talking to you and you told him if you don’t leave I am going to get my gun and start blowing, that would not be true?

“A. That would be a lie, sir. I have taken this oath and I am swearing the truth.

“Q. Is that true or not, would Tracy be telling something untrue?

“A. Tracy would be lying.

“Q. Your son?

“A. My son.

“Q. And if Tracy said when Wayne went to run away that is when you shot him, that would not be true?

“A. My son didn’t say that.

“Q. I am asking you, Mr. Harris, if he said it would it be untrue?

“A. It would be untrue.

“Q. Okay. And if Tracy said you fired two shots, that would be true, wouldn’t it?

“A. That would be true. I shot one out the door and one over Aaron’s head. If I hadn’t shot out there he would have shot in my house and might have hit my family and everything. I tried to shoot up over his head to scare him off.

“Q. And if Tracy said that you shot Wayne because he was just bothering you while you were relaxing, that would be untrue?

“A. Tracy didn’t say that.

“Q. I am asking you if he said that would it be untrue?

“A. He didn’t say that. It would be untrue.

“Q. It would be untrue?

“A. It would be untrue.”

The district court correctly determined that a failure to object during the cross-examination would be a trial type procedural default involving “trial judgment of [the] lawyer” triggering review under the “cause and prejudice” standard of Wainwright v. Sykes, 433 U.S. at 91 n.14, 97 S.Ct. 2497 citing Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). The court held there was cause and prejudice under that standard.

The failure to specify grounds for the motion for new trial, the court held to be a post-trial default involving a decision exercised by the defendant reviewable under the “deliberate bypass” rule of Fay v. Noia, 372 U.S. at 398-399, 438, 83 S.Ct. 822. See Wainwright v. Sykes, 433 U.S. at 92, 97 S.Ct. 2497 (Burger, C. J., concurring); Rinehart v. Brewer, 561 F.2d 126, 129, 130 n.6 (8th Cir. 1977). The court held there was no deliberate bypass under that standard.

Under Wainwright v. Sykes, supra, to obtain relief the defendant must show that counsel’s failure to raise a contemporaneous objection to the prosecutor’s cross-examination of Harris is coupled with cause and prejudice. Prejudice was clear. On review in the state court, Harris v. State, 347 So.2d at 1367, the Alabama appellate court said, “[t]here is no doubt and we have so held that questions of this type are hearsay and prejudicial. Madison v. State, 55 Ala.App. 634, 318 So.2d 329, cert. denied, 294 Ala. 764, 318 So.2d 337 (1975).”

The crux of the prejudice suffered by defendant Harris was the prosecutor’s failure to call the defendant’s son as a witness to provide appropriate evidentiary foundation for the cross-examination, and to afford the defendant an opportunity to confront the “witness.” Had the son been called to testify, the prosecutor’s questions would not necessarily have been improper. Without testimony of the son, however, the prosecutor’s highly suggestive questions were based on unsworn statements which were not in evidence. No proof was ever offered that the statements the prosecutor attributed to the son were actually made, so of course they were not subjected to the test of cross-examination as required by the Sixth Amendment. See Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). These are precisely the type of statements Alabama courts have found ineradicably prejudicial. Madison v. State, 318 So.2d at 336-337.

In Madison v. State the trial court had determined that statements given to the police by the defendant’s four year old son were inadmissible. Nevertheless the prosecutor referred to the son’s statements while cross-examining the defendant. Reversing Madison’s conviction for second degree murder, the Alabama Criminal Appeals court criticized the prosecutor’s cross-examination and said,

Statements by prosecutors of facts not in existence, or which have been excluded from evidence, are improper per se. Such statements are grounds for reversible error where their impact upon the jury would be so prejudicial that proper instruction by the trial court would not eradicate their prejudicial effect. Where the objectionable statement is made as a fact, unsupported by any legal evidence, pertinent to the issue, and its natural tendency is to influence the finding of the jury, there is sufficient ground for a reversal, (cases omitted)

Madison v. State, 318 So.2d at 336-337.

The constitutional error occurred, however, not when the questions were asked, but when the son was not called. An objection at the time of questioning would have been little more than an objection to the order of proof. The precise basis for defendant Harris’ objection did not ripen until the close of evidence when the prosecutor’s option to call the son as a witness was foreclosed. By that time it was too late to save the trial by instructions under Alabama’s own rule. Madison v. State, supra. Therefore the whole purpose of the contemporaneous objection rule is thwarted by arguing that it applies here. There was adequate cause for noncompliance with the contemporaneous objection rule. No plausible advantage derived from defendant’s failure to object during cross-examination.

As to the motion for a new trial at the close of the case, the defendant’s failure to properly set forth grounds for new trial was apparently a combination of ignorance of practice and the failure of the court to give him adequate time. The attorney’s default apparently stemmed from inadvertent mistake or neglect or the press of circumstance. The following colloquy took place in open court.

THE COURT: Is that all?

THE DEFENDANT: It is taking my rights. I was acting in self-defense and it is just taking my rights. . I think I should have another trial or something, because the evidence was cloudy. I don’t like the way the evidence came out. He convicted me himself, not on the evidence.

* * # * * *

THE COURT: Now, just a minute.

THE DEFENDANT: I was acting in self-defense, Your Honor. God knows this. No man in this Court knows what happened that night but me and God and the dead fellow. We know. Nobody else can predict what happened, no witnesses. There was no witnesses, Your Honor. I don’t think it is fair, Your Honor.

THE COURT: Is there anything else?

THE DEFENDANT: I don’t think it is fair.

THE COURT: The Jury found you guilty of Murder in the Second Degree and sentenced you to forty five years imprisonment in the penitentiary. The Jury having found you guilty of Murder in the Second Degree and sentencing you to forty five years imprisonment in the penitentiary, the Court now finds you guilty of Murder in the Second Degree and sentences you to forty five years imprisonment in the penitentiary. Notice of Appeal given?

MR. ALLEN: I would move, Your Hon- or, for a new trial and for the verdict to be set aside. The verdict is contrary to the law and evidence in the case.

THE COURT: Notice of Appeal given. You want the sentence suspended pending an appeal?

MR. ALLEN: Yes, sir.

THE COURT: Of course, he will have to stay in jail.

The Court’s statement “Notice of Appeal given” effectively closed off the opportunity to present the motion fully. The record shows the trial court apparently anticipated an appeal and was more concerned with the requisite notice rather than defendant’s and his counsel’s grounds for new trial. Given this context coupled with the absence of any discernable advantage from failing to specify grounds for a new trial, the district court cannot be reversed for deciding that defendant’s procedural default was not a deliberate bypass barring habeas corpus review under Fay v. Noia.

The result is the same even if defendant’s motion for new trial is reviewed under the cause and prejudice standard in Wainwright v. Sykes. Prejudice is plain. No witness who testified at trial saw the killing. The case turned on the credibility of defendant’s testimony that he acted in self-defense. The prosecutor’s questions during cross-examination suggested that another eyewitness told a story contrary to the defendant’s. The suggestion was all the more damaging because the prosecutor’s “source” was the defendant’s own son. The district court’s ruling that the defendant suffered ineradicable prejudice is consistent with Madison v. State, 55 Ala.App. 634, 318 So.2d 329, cert. denied, 294 Ala. 764, 318 So.2d 337 (1975).

Whether there was adequate cause for the failure to elaborate on defendant’s motion for new trial turns on whether a finding of cause safeguards against a “miscarriage of justice,” Wainwright v. Sykes, 433 U.S. at 91, 97 S.Ct. 2497, and whether it can be presumed that no strategic advantage can be gained from failure to comply with the procedural rule. Jiminez v. Estelle, 557 F.2d 506, 511 (5th Cir. 1977). The failure of Harris and his counsel to comprehend the importance of the procedural requirements attending a motion for new trial under the facts of this case is adequate cause raising an issue of injustice without compromising the legitimacy of state procedure. See Sincox v. United States, 571 F.2d 876, 879-880 (5th Cir. 1978); Rinehart v. Brewer, 561 F.2d 126, 130 n.6 (8th Cir. 1977). The district court found the procedural default of the defendant and his attorney was not a tactical maneuver since neither apparently grasped the importance of specifying the grounds for a motion for new trial.

The state has failed to demonstrate on this appeal any error in the district court’s issuance of a writ of habeas corpus.

AFFIRMED.