Springer v. Coleman ( 1993 )


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  •                                   United States Court of Appeals,
    
                                                Fifth Circuit.
    
                                               No. 91-6258.
    
                                  R.B. SPRINGER, Petitioner-Appellant,
    
                                                      v.
    
      Lawrence COLEMAN, Director, Harris County Adult Probation Department, Respondent-
    Appellee.
    
                                               Aug. 23, 1993.
    
    Appeal from the United States District Court for the Southern District of Texas.
    
    Before POLITZ, Chief Judge, GOLDBERG, and JONES, Circuit Judges.
    
           GOLDBERG, Circuit Judge:
    
           R.B. Springer appeals from the district court's denial of his petition for a writ of habeas
    
    corpus. Springer, a former Houston police officer, was investigated by a Texas grand jury regarding
    
    allegations of police brutality. Specifically, the grand jury questioned Springer about numerous
    
    complaints that Springer had choked suspects and prisoners in his custody. In the course of the grand
    
    jury pro ceedings, and while Springer was under oath, one of the grand jurors asked Springer the
    
    following question: "Mr. Springer, have you ever physically abused or mistreated a prisoner or
    
    suspect in your custody?" Springer answered: "No sir."
    
           On the basis of Springer's grand jury testimony, Springer was charged with aggravated perjury
    
    and tried in state court. At Springer's bench trial, the state presented eight witnesses who testified
    
    that Springer had choked or otherwise mistreated them while they were in Springer's custody.
    
    Springer was convicted and sentenced to ten years imprisonment, probated on the condition that he
    
    serve 30 days in the Harris County jail.
    
           Springer's conviction was affirmed on direct appeal by the Texas Fourteenth Court of
    
    Appeals. 
    721 S.W.2d 510
    . Springer's subsequent petition for discretionary review was denied by the
    
    Texas Court of Criminal Appeals, as was Springer's application for a state writ of habeas corpus in
    
    the trial court. On appeal of the denial of habeas corpus, a divided panel of the Texas Fourteenth
    
    Court of Appeals again affirmed Springer's conviction.
            Springer next petitioned the federal district court for a writ of habeas corpus, alleging that his
    
    state perjury conviction violated the Due Process Clause of the Fourteenth Amendment. The district
    
    court rejected appellant's petition and declined to disturb the state perjury conviction, finding that "the
    
    evidence showed the falsity of Springer's response in that numerous witnesses testified to the
    
    mistreatment that they received while in Springer's custody." We affirm the district court's denial of
    
    Springer's petition for a writ of habeas corpus.
    
                                                  ANALYSIS
    
            Under Texas law, a person commits perjury if the person makes a false statement under oath,
    
    with intent to deceive, and with knowledge of the statement's meaning. Tex.P.C. § 37.02. The term
    
    "statement" means "any representation of fact." Tex.P.C. § 37.01(3). Perjury is aggravated if the
    
    false statement is made during an official proceeding, including a grand jury proceeding. Tex.P.C.
    
    § 37.03 and § 37.01(2). See Terrell v. State, 
    801 S.W.2d 544
    , 547 (Tex.App.1990).
    
            It is the role of the fact-finder to determine whether the defendant understood the question
    
    propounded t o him and intentionally lied. United States v. Thompson, 
    637 F.2d 267
    , 270 (5th
    
    Cir.1981); United States v. Cuesta, 
    597 F.2d 903
    , 921 (5th Cir.) cert. den. 
    444 U.S. 964
    , 
    100 S. Ct. 451
    , 
    62 L. Ed. 2d 377
     (1979). The state trial judge, who was the trier of fact in this non-jury trial,
    
    found that Springer understood the question propounded to him, and intentionally lied to the grand
    
    jury. In reviewing a state conviction under a petition for a writ of habeas corpus, "federal courts must
    
    accord a presumption of correctness to any state court factual findings." Barnard v. Collins, 
    958 F.2d 634
    , 636 (5th Cir.1992); Miller v. Fenton, 
    474 U.S. 104
    , 105, 
    106 S. Ct. 445
    , 446, 
    88 L. Ed. 2d 405
     (1985); 28 U.S.C. § 2254(d).
    
             Springer does not challenge the state court's factual findings, but instead argues that the
    
    question, "[h]ave you ever physically abused or mistreated a prisoner or suspect in your custody?,"
    
    was so "vague" that as a matter of constitutional law it could not form the basis of a constitutional
    
    conviction. According to the appellant, the state perjury conviction violates the Due Process Clause
    
    of the Fourteenth Amendment because there is no objective standard by which to determine what
    
    constitutes "physical abuse" or "mistreatment."
             Appellant's constitutional argument is based on an analogy to the well established
    
    void-for-vagueness doctrine, under which state convictions obtained under vague statutes have been
    
    found to be in violation of the Due Process Clause. In Kolender v. Lawson, 
    461 U.S. 352
    , 
    103 S. Ct. 1855
    , 
    75 L. Ed. 2d 903
     (1983), the Court held that a statute requiring persons to show "credible and
    
    reliable identification" when requested by a police officer was unconstitutionally vague on its face.
    
    See also Papachristou v. City of Jacksonville, 
    405 U.S. 156
    , 
    92 S. Ct. 839
    , 
    31 L. Ed. 2d 110
     (1972)
    
    (finding unconstitutionally vague a statute prohibiting inter alia "wandering or strolling around from
    
    place to place without any lawful purpose or object"). "The void-for-vagueness doctrine requires that
    
    a penal statute define the criminal offense with sufficient definiteness that ordinary people can
    
    understand what conduct is prohibited ..." Kolender, 461 U.S. at 357, 103 S.Ct. at 1858. A
    
    conviction may be unconstitutional if it is obtained under a statute so vague that it does not provide
    
    adequate notice of what conduct will be deemed criminal.
    
            Arguing by analogy, the appellant maintains that some questions, like some statutes, may be
    
    so vague that a reasonable person could not be expected to know whether the question propounded
    
    was a question of fact or a question of opinion. If the witness mistakenly interprets a vague question
    
    as one asking for an opinion, the witness would not be on notice that the answer to this question
    
    could implicate the laws of perjury. According to Springer, the terms used in the question at issue,
    
    "mistreat" and "abuse," are as vague as the terms "credible and reliable" in the statute struck down
    
    by the Kolender Court. Thus, Springer co ncludes that the question of whether he had ever
    
    "physically abused" or "mistreated" suspects in his custody was too vague to support a conviction
    
    for perjury.
    
            Appellant cites no precedent for the proposition that a state perjury conviction may be found
    
    unconstitutional because the question in response to which the defendant was found to have
    
    committed perjury was too vague.1 We have no occasion to decide whether the Due Process Clause
    
       1
        A number of opinions employ an analysis similar to that urged by the appellant in reversing
    convictions obtained under the federal perjury statute. In United States v. Bell, 
    623 F.2d 1132
    (5th Cir.1980), the defendant was asked whether he had any of the records requested in a
    subpoena. The defendant answered "no," even though his office files indisputably contained such
    records. On appeal, the defendant argued that he thought he was being asked whether he had the
    prohibits perjury convictions obtained with vague questions because we find that the question
    
    propounded to Springer was not vague.
    
              In view of the entire grand jury record, the question propounded to Springer, i.e., whether
    
    he had physically abused or mistreated suspects in his custody, simply asked Springer whether he had
    
    treated suspects in a way that caused them physical injury, such as choking them. Springer's answer,
    
    "No Sir," was a reiteration of Springer's repeated denials of choking suspects in his custody. In the
    
    course of the grand jury investigation Springer admitted that he had used choke holds while
    
    attempting to apprehend violent suspects. However, in answering further questions, Springer
    
    categorically denied choking persons in Springer's custody; whether they were prisoners,2 or
    
    suspects in his custody at the police station.3 Springer also specifically denied choking several named
    
    
    records with him that day in the court room. Recognizing the "problem that necessarily arises
    when an answer would be true on one construction of an arguably ambiguous question but false
    on another (citation omitted)," the Bell court reversed the perjury conviction. The court
    explained that although the defendant "may very well have known what the government now says
    it was seeking, ... the evidence does not establish that fact. "Defendants may not be assumed into
    the penitentiary.' " Id. at 1137 (citation omitted).
    
                      Similarly, a federal perjury conviction on the basis of an ambiguous question was
              reversed in United States v. Wall, 
    371 F.2d 398
     (6th Cir.1967). Defendant Wall was
              convicted of perjury on the basis of her testimony before a grand jury. Wall was asked
              whether she had "been on trips with Mr. X," and she answered "I have not." Wall was
              convicted of perjury after the government showed that in fact, Wall, who lived in
              Oklahoma City, was seen with Mr. X in Miami. The Sixth Circuit reversed, finding that
              the question propounded to Wall was susceptible to two interpretations. The question of
              whether a person had been on trips with another could either mean "[t]hat a person
              accompanied somebody else traveling with, or it can mean that they were there at a
              particular place with a person." Id. at 399. There was no evidence that Wall accompanied
              X on any trip to Miami, but there was evidence that Wall spent time in Miami with X. As
              the question was readily open to two plausible interpretations, the Sixth Circuit held that
              "no charge of perjury can be based upon an answer to such a question." Id. at 400. The
              court explained that when "the question propounded admits of several plausible meanings,
              the defendant's belief cannot be adequately tested if it is necessary to determine what the
              question meant to him when he gave the disputed answer." Id. See also United States v.
              Lattimore, 
    112 F. Supp. 507
    , 516 (D.D.C.1953) affd. in part and revd. in part 
    215 F.2d 847
     (D.C.Cir.1954); O'Connor v. United States, 
    240 F.2d 404
    , 405 (D.C.Cir.1956).
       2
           Q: Have you ever, with any prisoner in your custody, choked that prisoner?
    
                     A: No, sir.
       3
        Q: Have you choked them or struck them in any fashion after they were in custody in the
    police station?
    persons that were in his custody, including Mr. Phillips, and Mr. Vackar. It was after denying that
    
    he had choked suspects in his custody, such as Mr. Phillips, that Springer was asked the more general
    
    question: "Mr. Springer, have you ever physically abused or mistreated a prisoner or suspect in your
    
    custody? " In proper context, Springer's answer to this question, denying that he physically abused
    
    or mistreated persons in his custody, is merely a generalized restatement of his more specific claim
    
    that he never choked suspects such as Phillips, and Vackar. We agree with the Texas appellate court
    
    that in this context "the words "abuse' and "mistreatment' connote physical or mental injury."
    
    Choking a person, stopping the breath of a person by squeezing or obstructing the windpipe, is a form
    
    of physical abuse and mistreatment.
    
           Contrary to Springer's general and specific denials of choking Phillips, Vackar, and other
    
    persons in his custody, the state's witnesses at trial established that Springer had in fact choked
    
    Phillips, Vackar, and others. There was ample evidence for the state t ial court to conclude that
                                                                         r
    
    Springer's denial of such choking, or other forms of physical abuse, was an intentional lie. In sum,
    
    when put in the context of the entire grand jury proceedings, the question propounded to Springer
    
    was not vague, and his perjury conviction was not fundamentally unfair or otherwise in violation of
    
    the constitution.
    
             In addition to the void-for-vagueness argument, Springer claims that his state perjury
    
    conviction was invalid because the grand juror's question called for an opinion, not a representation
    
    of fact as required by Tex.P.C. § 37.01(3). The Texas state courts, applying Texas law, held that the
    
    question at issue called for a statement of fact. As a Federal Court we may find that the state court's
    
    application of state perjury law violates due process, but we may not interfere with the state court's
    
    application of state law. Smith v. McCotter, 
    786 F.2d 697
    , 700 (5th Cir.1986) ("We do not sit as a
    
    "super' state supreme court. (citation omitted) Consequently, we decide the following issues only
    
    to the extent that federal constitutional issues are implicated and we refuse to act as an arm of the
    
    Texas Court of Criminal Appeals"). As the district court correct ly held, this court holds no
    
    supervisory power over state judicial proceedings and may intervene only to correct errors of
    
    
                   A: I would have to say "no' sir.
    constitutional dimensions. Smith v. Phillips, 455 U.S. U.S. 209, 221, 
    102 S. Ct. 940
    , 948, 
    71 L. Ed. 2d 78
     (1982).
    
                                             CONCLUSION
    
           For the foregoing reasons, the decision of the district court is AFFIRMED.