Finis Smith Blankenship v. W. J. Estelle, Jr., Director of Texas Department of Corrections

GOLDBERG, Circuit Judge,

concurring specially:

I concur in the result reached by the majority. I join the majority opinion itself with the exception of Part III, which is concerned with the admission of other crimes evidence at appellant’s trial. The opinion may imply what I would make explicit; because I cannot be certain, however, I add this special concurrence.

We are of course not concerned with federal or state evidentiary rules regarding extraneous offenses. Nothing in the majority opinion or this concurrence may be read as a determination that the evidence in question could have been admitted in a federal prosecution. We are concerned here only with the fundamental fairness required by the due process clause.

Beginning from the established proposition that “the erroneous admission of prejudicial evidence can justify habeas corpus relief if it is ‘material in the sense of a crucial, critical, highly significant factor,’ ” Hills v. Henderson, 529 F.2d 397 (5th Cir. 1976), the majority concludes that the introduction of two concededly significant sets of evidence relating to other crimes did not rob Blankenship’s trial of that fundamental fairness. The majority notes without more that the evidence — that Blankenship had participated in a supermarket robbery subsequent to that involved in this appeal and that he had told his accomplices Brooks and Crawford that he had killed men in the past — was relevant and necessary to the prosecutor’s case.

*518 That observation seems unobjectionable as far as it goes. 1 The problem is that the analysis leaves some implication that the due process inquiry is at an end when other crimes evidence is found to be important and relevant to the prosecution. Evidence of other offenses, however, will be of greatest importance to the prosecution whenever the case against the defendant is weak. That situation is of course also the situation in which the evidence contains the greatest potential for prejudice.

That potential for prejudice is the source of the requirement that introduction of other crimes evidence be predicated upon a strong showing that the defendant in fact committed the other offense. Hills itself applied such a requirement in the habeas context. The majority here fails to discuss the strength of the link between Blankenship and the other offenses, perhaps assuming that its sufficiency is obvious. Absent a sufficient connection, admission of-at least the evidence of the subsequent supermarket robbery would have been a material error in the Hills due process sense, for the evidence of Blankenship’s participation in the robbery of which he stands convicted was almost entirely the uncorroborated testimony of accomplices. Only because I am satisfied that the link between Blankenship and the other offenses comported with the due process guidelines of Hills do I agree that this point of appeal does not call for habeas relief.

There was here a strong showing that Blankenship participated in the subsequent robbery. Eyewitnesses to the Minyard’s robbery saw the two perpetrators make their way in one car to a dead-end street. There they transferred to a white 1966 Chevrolet, the same color and model as Blankenship’s auto. A man resembling Blankenship then drove the car to an area adjacent to Blankenship’s property; forty-five minutes later, a man positively identified as Blankenship drove a white 1966 Chevrolet away from that property.

I cannot conclude that this connection between Blankenship and the Minyard’s robbery was deficient under due process or Texas standards. 2 This is not a case in which, as in Hills ,

The oft-recognized dangers of related-crime evidence reach unacceptable levels when the very fact of the accused’s involvement in the alleged related offense is open to serious doubt.

Hills, supra, 529 F.2d at 400 . 3

The due process challenge to the witnesses’ statements that appellant had told them *519 he had previously killed men also fails. The statements could not have been offered as proof that Blankenship had in fact killed men in the past. Nevertheless the witnesses could testify as they did that Blankenship himself made these threatening statements during the process of persuading the two to carry out the robbery. The statements simply did not serve as evidence of other crimes. Rather, the threats in themselves were relevant to the manner in which Blankenship carried out the crime, a question put hotly in dispute at trial.

Nothing in the majority opinion suggests disagreement with my analysis of the admissibility of the other crimes evidence at Blankenship’s trial. I have written separately in order again to make explicit the requirement, applied in the habeas context in Hills , of a strong probative link between the defendant and the other crimes. Having done so and having found such a link in the instant case, I join in the disposition announced by the majority and in the excellent remainder of Judge Gee’s opinion.

. The first step toward a determination that other crimes evidence is admissible is finding an applicable exception to the general rule excluding such evidence. It is not immediately clear that the evidence of the subsequent supermarket robbery fell close to any of them.

Certainly I would take exception to any suggestion that evidence of similar offenses, as opposed to convictions, is admissible simply to discredit a defendant’s denial of participation in the offense with which he is charged. This is the very sort of use of other crimes to show predisposition against which the general rule is a protection. Were that the only purpose served by admitting this highly significant evidence at Blankenship’s trial, a serious due process question would be raised.

In the particular factual setting here, admission of the subsequent robbery served at least in some fashion to show a system of similar robberies.in which Blankenship was involved although never directly on the scene himself. I emphatically reiterate that I make no suggestion that such a theory would pass muster under the federal rules of evidence. On the facts here, however, the theory was closely enough related to one of the traditional justifications for admission of evidence of extraneous offenses that, given the strong indication Blankenship was involved in the subsequent robbery, the fundamental fairness standard was not violated.

. Because the strength of the connecting evidence in the instant case meets all the standards discernible in Hills , this panel need not determine how great a connection due process requires, regardless of the standard set by state law.

. Hills itself was concerned with the admission in a rape prosecution of evidence relating to a similar assault. No evidence directly connected the defendant to that assault; rather, he was found in possession of a coat stolen from the victim’s house in a burglary a month after the assault.

This court found the evidence was erroneously admitted. Given the strength of the prosecution’s case and the proper admission of still other related crimes evidence, we concluded, however, that the error did not rise to the level of fundamental unfairness.