Burge v. St. Tammany Parish Dist Attorney's Office, PLAINTIFF-APPELLEE-APPELLANT

• Decision Date: 25 August 1999
• Docket Number: DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,DEFENDANTS-APPELLEES,No. 97-30241,PLAINTIFF-APPELLEE-APPELLANT,DEFENDANTS-APPELLANTS,97-30241
• Citation: 187 F.3d 452
• Parties: (5th Cir. 1999) GERALD BURGE,, v. ST. TAMMANY, PARISH OF, ET AL.; DEFENDANTS, ST. TAMMANY PARISH DISTRICT ATTORNEY'S OFFICE; WALTER REED,, and PATRICK J. CANULETTE, SHERIFF, IN HIS OFFICIAL CAPACITY AS SHERIFF OF THE PARISH OF ST. TAMMANY; GARY HALE, GERALD BURGE,, v. PATRICK CANULETTE, IN HIS OFFICIAL CAPACITY AS SHERIFF OF THE PARISH OF ST. TAMMANY, ET AL., DEFENDANTS, PATRICK CANULETTE, IN HIS OFFICIAL CAPACITY AS SHERIFF OF ST. TAMMANY,
• Court: U.S. Court of Appeals — Fifth Circuit

Page 452

187 F.3d 452 (5th Cir. 1999)

GERALD BURGE, PLAINTIFF-APPELLEE-APPELLANT, v. ST. TAMMANY, PARISH OF, ET AL.; DEFENDANTS, ST. TAMMANY PARISH DISTRICT ATTORNEY'S OFFICE; WALTER REED, DEFENDANTS-APPELLEES, and PATRICK J. CANULETTE, SHERIFF, IN HIS OFFICIAL CAPACITY AS SHERIFF OF THE PARISH OF ST. TAMMANY; GARY HALE, DEFENDANTS-APPELLANTS.

GERALD BURGE, PLAINTIFF-APPELLEE, v. PATRICK CANULETTE, IN HIS OFFICIAL CAPACITY AS SHERIFF OF THE PARISH OF ST. TAMMANY, ET AL., DEFENDANTS, PATRICK CANULETTE, IN HIS OFFICIAL CAPACITY AS SHERIFF OF ST. TAMMANY, DEFENDANT-APPELLANT.

No. 97-30241

U.S. Court of Appeals, Fifth Circuit

August 25, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the Eastern District of Louisiana

Before Davis, Jones, and Dennis, Circuit Judges.^*

The opinion of the court was delivered by: Dennis, Circuit Judge

Plaintiff Gerald Burge ("Burge") was imprisoned for nearly five years for a crime of which he was later exonerated. In 1986, a sheriff's deputy allegedly facilitated Burge's conviction of the second degree murder of Douglas Frierson ("Frierson") in St. Tammany Parish, Louisiana, by suppressing a pretrial statement by the victim's mother that would have impeached her perjured testimony that she saw Frierson leave her house with Burge shortly before the homicide. After that statement and other suppressed exculpatory evidence came to light, Burge was granted a new trial and acquitted by a jury in 1992.

Burge brought civil actions for damages in the United States District Court against the District Attorney and the Sheriff of St. Tammany Parish, Louisiana, and a number of assistant district attorneys and sheriff's deputies, under 42 U.S.C. §§ 1983, the Louisiana Constitution, and state tort law. The gravamen of these actions is that the suppression of exculpatory evidence in violation of Burge's constitutional right to due process was caused by: (1) the deliberately indifferent policies and customs of the Sheriff and the District Attorney, in their official capacities, regarding the supervision and training of employees in the handling of exculpatory evidence; and (2) the intentional acts and omissions of their individual deputies and assistants in the introduction of false evidence and suppression of exculpatory evidence.

The present appeals arise from motions for summary filed by the defendants in Burge's civil action. The district court granted them in part and denied them in part. Burge and several of the defendants appealed from a number of the district court's rulings that were adverse to them.

I. FACTUAL BACKGROUND

At approximately 4:13 a.m. on October 17, 1980, the body of Douglas Frierson was found under a bridge in St. Tammany Parish. He had been shot to death in the abdomen, shoulder, and head with a large caliber weapon. It appeared that he had been killed only an hour or so before his corpse was found. When Glenda Frierson ("Glenda"), the victim's sister, was informed of her brother's death, she related the news by telephone to his friend, Gerald Burge. Burge called the St. Tammany Parish Sheriff's Office (the "Sheriff's Office") at about 8:30 a.m., verified the report, and told Chief of Detectives E.L. Hermann, Jr. ("Lt. Hermann") that on the night of the murder Frierson had visited his home and departed at about midnight on foot. Lt. Hermann assigned Detective Gary Hale ("Hale"), who had inspected the murder scene and the victim's body soon after its discovery, to investigate the murder.

A. The Murder Investigation and The Allegedly Withheld Exculpatory Evidence

On October 17, 1980, Hale took a recorded statement (later transcribed) of Mrs. Jean Frierson ("Mrs. Frierson"), the victim's mother. Mrs. Frierson told Hale that her son ate pancakes at her home in Picayune, Mississippi at about midnight on October 16, 1980 and that at approximately 12:50 a.m. on October 17, 1980 Frierson was picked up by someone in a car. Mrs. Frierson said that she did not see the vehicle or the person or persons with whom her son left.

On October 17, 1980, Hale also took a recorded statement from Frierson's 12-year-old brother, Ricky Frierson ("Ricky"), who told Hale that at approximately 12:50 a.m. on October 17, he saw Burge and Joe Pearson ("Pearson") drive up to Mrs. Frierson's residence in Burge's red Cadillac with a white top. Although Ricky said that he did not see his brother get in the car, he told Hale that he saw Frierson sitting in the back seat of the vehicle as it drove away.

On October 18, 1980, Hale interviewed Pearson, who said that he did not leave his home on October 16 or 17, and that his girlfriend, Jo Ella Prestwood ("Prestwood"), could confirm his whereabouts at the time of Frierson's murder.

On October 21, 1980, Hale interviewed Burge, who said that on the night of the murder he picked up Frierson at his mother's home in Burge's red and white Cadillac and that he dropped off Frierson at a convenience store between 11:30 p.m. and 12:30 a.m. This second statement was partially inconsistent with Burge's first statement in which he said Frierson left his house at midnight on foot. Burge also told Hale that although he had a Ruger Blackhawk .44 magnum weapon, he had given Frierson the .44-caliber gun to sell approximately one week before the murder. In October 1980, an officer from the New Orleans Police Department, where the autopsy was performed, told Hale that the bullets taken from Frierson's body probably were fired from a Ruger Blackhawk .44-caliber weapon.

On October 22, 1980 Hale interviewed Bernice Frierson ("Bernice"), the victim's brother, who stated that on October 13 he saw Burge with a .44-caliber weapon, and that Burge told him that he would kill anyone before he would go to jail. Bernice also said that on this date Burge told him that he and Pearson had quarreled over money that Pearson owed Frierson from a drug deal, and that Burge later told him that he had picked up Frierson on the night of the murder because Frierson wanted to make a phone call.

On October 24, 1980, based on an arrest warrant supported by the sworn affidavit of Hale, Burge was arrested for the murder of Frierson. Burge was released one week later when the District Attorney's Office decided not to prosecute for lack of sufficient evidence.

At some time during the murder investigation, Hale also prepared an undated final reesumee. In this report, Hale disclosed that when Burge called Lt. Hermann on the morning Frierson's body was found, Burge did not ask "where the victim was found or how the victim was killed or what time the victim was discovered." Hale also referred to a second interview with Ricky Frierson on October 23, 1980. In this later interview, Ricky stated that Burge told Ricky that he must have been "mistaken" when he told Hale that he saw Burge and Pearson pick up Frierson on the night of the murder; and that the third person in the car actually was an unnamed woman. The reesumee also reflects that Hale had obtained a written statement from Sgt. B. Smith of the Picayune Police Department indicating that at 12:45 a.m. on October 17, 1980, she saw Frierson at a lounge in Picayune, Mississippi with Johnny Milstead, Paul Johnson, and Bobby Frierson, the victim's cousin. Hale's reesumee also refers to taped statements from Milstead, Johnson, and Bobby Frierson confirming that they had been drinking with Frierson that night. However, according to the reesumee, Bobby Frierson told Hale that they took Frierson home at approximately 12:30 a.m.

Hale also prepared an undated handwritten "supplemental report" stating that on April 21, 1981 Detective David Brooks of the Mississippi Highway Patrol told Hale that Rhonda Spears ("Spears") told him that she heard Pearson admit that he had killed Frierson. According to Hale's report, Chief Ladner of the Hancock County, Mississippi Sheriff's Office was present during this conversation. In this handwritten reesumee, Hale also indicated that he had interviewed a private investigator and a bail bondsman who told him that they had spoken with Prestwood on April 16, 1981, and that she told them that Pearson made "statements which caused her to believe that Pearson and Burge had murdered Frierson."

On April 21, 1981, Hale took a recorded statement from Prestwood, who said that at midnight on the night of the murder, Burge picked up Pearson in his red and white Cadillac and that Pearson returned at approximately 4:00 a.m. Prestwood also told Hale that Pearson told her to tell the police that he had been with her on the night of the murder. She also disclosed that Pearson told her that Frierson had been "ratting" on Burge and him and that he (Pearson) had shot Frierson in the head.

In the summer of 1981, Hale resigned from the St. Tammany Parish Sheriff's Office and became chief investigator and jailer for Pearl River County in Mississippi. Hale left the law enforcement field in late 1983. In 1983, Hale married Glenda Frierson, Frierson's sister, whom he met and began dating during his investigation of her brother's murder.

On November 23, 1983, Detective Mike Moore of the St. Tammany Parish Sheriff's Office, who continued the investigation after Hale's resignation, obtained another recorded statement from Prestwood in which she admitted that she lied when she originally told Hale that Pearson had been with her on the night of Frierson's murder. Prestwood also said that Pearson told her a few days after the murder that Frierson was a "rat" and that he told her "we got his head blown off."

B. Burge's First Murder Trial

While Burge was serving a sentence in a Mississippi prison on an unrelated conviction of receiving stolen property, Pearson confessed to authorities that he and Burge picked up Frierson at midnight on October 16 and drove him to a bridge on Highway 90, where they argued over money and...