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aperenmen tent wee ere ee Sheppard v." Maxwell No. 16077 tional question suggested by the opinion of the District Court, Whatever the rule may be when prompt. and.ap- propriate objection is made, itis not..a.denial..of due process for a trial court to withhold supervision of a seem- ingly déliberate withholdiiig.of objections by defense coun- sel or to allow a tardy change of strategy. It is significant that iio motion to strike the extensive pre-objection testi- mony on this subject was ever made, that no written in- struction on the subject was proffered at any time, and that no error was assigned on appeal because of what occurred in this regard. We think it would be a‘ quite justifiable inference that for reasons sufficient to themselves, Dr. Sheppard’s able and experienced trial counsel deliberately made an initial decision not to object to this evidence. We need not at this time try to probe the minds of such counsel to speculate as to what prompted their trial strategy. The passage quoted above demonstrates that they were aware of the rule rendering the results of lie detector tests inad- missible, and in their earlier objections to Mayor Houk’s testimony they showed their awareness of the normal rule against testimony as to whether such a test has been taken. Ohio follows these rules, State v. Smith, 113 Ohio App. 461, 178 NE(2) 605 (1960). Sophisticated trial counsel will readily recall many occasions when they have deliberately withheld objection to inadmissible evidence and thereby served their client well. Varying reasons motivate such strategy. In this case, counsel may well have desired to obtain from the mouths of police officers the many exculpa- tory statements made by Dr. Sheppard during the course of the investigation, particularly his original willingness to be tested by a lie detector, and to that end exhibited an attitude of willingness to let the officers talk. Their decision at long last to object to a particular answer which they then thought damaging to their theory that police hostility Peempted the refusal did not shut out what had already een Said on the subject. We agree that the trial judge could and should have given a better instruction to the jury, telline.them that the results of a lie detector test would not be admissible and, even though not requested to do so, might well have gone further to say that no infer- ence should be drawn from an accused’s refusal to submit to such a test. His advice to the jury that they were “not to understand by these questions that any person is obli- gated to take any lie detector test. A person has his own bhangra REYNE Le gto etatignd as ot Pe No. 16077 Sheppard v. Maxwell - “ 39 choice. He is under no obligation whatever to take it,” was, indeed, less than perfect. However, except for the on-the- spot request to tell the jury that “the results [of]: that test are not admissible,” no other instruction was requested, and the court did emphasize that no results of any test were available. We cannot find that the handling of this matter deprived the petitioner of any federally granted constitutional rights. If there was fault in what occurred, it was a nonconstitutional error which should have been assigned on appeal. Habeas corpus is not to be employed as a substitute for appeal. E.g., Oyler v. Taylor, 338 F (2) 260, 262 & n.38 (CA 10, 1964) ; Allen v. Bannan, 332 F(2) 399, 402 (CA 6, 1964); Barker v. Ohio, 328 F(2) 582, 584-85 (CA 6, 1964); Worth v. Michigan, 291 F(2) 621, 622 (CA 6, 1961), cert. denied, 368 U.S. 862 (1961) ; An- derson v. Jones, 281 F(2) 684, 686 (CA 6, 1960). We think that the observations of the Seventh Circuit in United States ex rel. Townsend v. Ogilvie, 334 F(2) 887, 843-44 (1964) are pertinent here. a “The [federal] court does not possess a residuum of power to search the record for procedural errors not involving constitutional rights and issue:a writ of habeas corpus for the purpose of providing’a new trial in the state court. . “A federal court acting in this fashion would consti- tute a super appellate tribunal and encroach upon state appellate court prerogatives; such action would affront the principles of federalism upon which our federal-state juridic system operates.” —__..; At this distance, we cannot say that the decision of Dr. Sheppard’s veteran counsel to withhold objection to the lie detector evidence prejudiced their client. It goes without saying that Dr. Sheppard’s conviction ‘does not prove such. As proud as we are of the great traditions of our courts and their concern for the rights of those accused of crime, we are aware that like all human institutions they seldom act with perfection. It is not difficult, after ten years of searching analysis and contemplative study and the an- nouncement of some new judicial attitudes, to find some imperfections in the conduct of a trial and to conclude that a judge or any attorney could have done a better job. But