ZERSCHAUSKY v. BETO, 396 F.2d 356 (5th Cir. 1968)

No. 25537.United States Court of Appeals, Fifth Circuit.
June 12, 1968.

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Fred A. Semaan, San Antonio, Tex., Luther E. Jones, Jr., Corpus Christi, Tex., for appellant.

Preston H. Dial, Jr., Asst. Dist. Atty., James E. Barlow, Crim. Dist. Atty., San Antonio, Tex., Lonny F. Zwiener, Asst. Atty. Gen., Crawford Martin, Atty. Gen. of Texas, Sparta Bitsis, Asst. Dist. Atty., Austin, Tex., for appellee.

Before GOLDBERG and CLAYTON, Circuit Judges, and HANNAY, District Judge.

GOLDBERG, Circuit Judge:

Following the successful example of Jackie Washington,[1] the appellant at bar claims error in the state trial court’s refusal to admit into evidence testimony of witnesses indicted as accessories. The district court below and the Texas Court of Criminal Appeals found the analogy invalid because the appellant here had never sought admission of such testimony. We affirm.

In April 1963 the appellant was convicted in a state district court for murder with malice and was sentenced to thirty years imprisonment. Three potential witnesses at his trial had been charged as accessories and did not testify. Their charges were dropped shortly thereafter. The appellant took no appeal from his conviction, but in 1966 he filed a petition for writ of habeas corpus in the same state district court, which granted the writ returnable before the Texas Court of Criminal Appeals.[2] On June 7, 1967, that Court, with two judges dissenting, denied relief. Ex Parte Zerschausky, Tex.Cr.App. 1967, 417 S.W.2d 279. On the same day the appellant filed a petition for writ of habeas corpus in federal district court below. The district court conducted a thorough factual investigation and on October 16, 1967, handed down an extensive memorandum opinion denying relief.

The appellant relies on Washington v. State of Texas, 1967, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019, which was

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decided on June 12, 1967, and which held unconstitutional the Texas statutes[3] denying defendants the right to call as witnesses anyone under indictment as accessories to the crime. The Court’s holding is summarized in its final paragraph:

“We hold that the petitioner in this case was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense. The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use. The judgment of conviction must be reversed.” 388 U.S. at 23, 87 S.Ct. at 1925.

Such holding is not here disputed.[4] However, in th Washington case there was no question of defense counsel’ voluntary withholding of the challenged testimony. The testimony there was proffered by the only eye witness to the crime, and it would have corroborated Washington’s testimony that the witness, not Washington, had committed the crime. We find relevant the following account by the Supreme Court:

“The record indicates that Fuller [the witness] would have testified that petitioner pulled at him and tried to persuade him to leave, and that petitioner ran before Fuller fired the fatal shot.
“It is undisputed that Fuller’s testimony would have been relevant and material, and that it was vital to the defense. Fuller was the only person other than petitioner who knew exactly who had fired the shot and whether petitioner had at the last minute attempted to prevent the shooting.” 388 U.S. at 16, 87 S.Ct. at 1922.

Unlike the facts in Washington, the district court in the case at bar found that no testimony by accessories was offered at the appellant’s trial. The record contains suggestions to both the judge, in chambers, and to the District Attorney that the witnesses might be called, but it is devoid of any attempt to do so in open court. The district court also found that the testimony which would have been given by the accessories would have conflicted in several respects with the appellant’s theory of self-defense. Finally, the court determined that the testimony would have been highly incriminating to those giving it. Noting that the appellant had waited to complain until charges had been dropped against the accessories and until the statute of limitations had run, the district court found, “the conclusion is inevitable that they were either deliberately by-passed as a part of the trial strategy, or that the present attempt to raise the constitutional issues has come as an afterthought.”

Constitutional rights may be waived by conscious decisions of trial

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strategy. Henry v. State of Mississippi, 1965, 379 U.S. 443, 450-451, 85 S.Ct. 564, 13 L.Ed.2d 408, 414-415; Fay v. Noia, 1963, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837, 869. To be sure, a defendant can waive only a “known right or privilege.” See Brookhart v. Janis, 1966, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed. 2d 314 (and cases cited therein). See also Curtis Publishing Co. v. Butts, 1967, 388 U.S. 130, 142-145, 87 S.Ct. 1975, 18 L.Ed.2d 1094, 1104-1105 (and cases cited therein). But, though th Washington decision was a mere predictability in 1963, the appellant did have opportunity even then to voice his request, place the proffered testimony in the record outside the presence of the jury, and perhaps even obtain the benefits of the testimony at trial.[5] Moreover, the appellant began raising complaints couched in constitutional terms in habeas corpus proceedings before the Washington decision was handed down (and after the statute of limitations had run on any accessory charges against the three proposed witnesses).

The facts in this case sufficiently withdraw it from the reaches of Washington. The district court correctly found that the appellant’s failure to call the accessories to the stand was the result of a voluntary and conscious decision in trial strategy, not mere docile obedience to a Texas statute.

Affirmed.

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