Phillip Washington, Petitioner-appellant, v. Ross Maggio, Acting Warden, Louisiana State Penitentiary,respondent-appellee, 540 F.2d 1256 (5th Cir. 1976)

Phillip Washington appeals from the district court's denial of his petition for a writ of habeas corpus. Washington asserts that his conviction for armed robbery was invalid because the trial judge did not instruct the jury to the effect that appellant's removal from the courtroom for creating a disturbance had no bearing on his guilt or innocence. We affirm.

In rejecting appellant's argument on direct appeal, the Supreme Court of Louisiana noted that appellant had neither requested a cautionary instruction nor objected to its absence in the state trial court. Appellant does not deny here his failure to act. Instead, he argues that the state trial judge should have given the cautionary instruction "as an independent obligation of the court." We cannot agree. Appellant was represented by counsel at trial, and as the Supreme Court has recently observed,

(u)nder our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of trial judges and counsel in our legal system.

Estelle v. Williams, --- U.S. ----, ----, 96 S. Ct. 1691, 1697, 48 L. Ed. 2d 126, 134 (1976). In Williams the Supreme Court held that counsel's failure to object to the defendant's appearance in court in prison garb barred assertion of constitutional error in a later habeas corpus proceeding. The same principle is applicable here. Cf. Wright v. Texas, 533 F.2d 185 (5th Cir. 1976).

Moreover, our examination of the record in this case convinces us that any error which might have been committed was harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 251-52, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971). Appellant was caught in the act of committing an armed robbery. Several eye witness identifications were made. The evidence against appellant was, in a word, overwhelming.

AFFIRMED.