Jones v. Jago, C75-530.

• Decision Date: 10 February 1977
• Docket Number: No. C75-530.,C75-530.
• Citation: 428 F. Supp. 405
• Parties: Harllel B. JONES, Petitioner, v. A. R. JAGO, Superintendent of the Southern Ohio Correctional Facility, Respondent.
• Court: U.S. District Court — Northern District of Ohio

428 F. Supp. 405

Harllel B. JONES, Petitioner, v. A. R. JAGO, Superintendent of the Southern Ohio Correctional Facility, Respondent.

No. C75-530.

United States District Court, N. D. Ohio, E. D.

February 10, 1977.

Gary T. Kelder, Syracuse, N. Y., Gordon S. Friedman, Cleveland, Ohio, Richard L. Aynes, Akron, Ohio, for petitioner.

Simon B. Karas, Asst. Atty. Gen., Columbus, Ohio, for respondent.

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

Harllel Jones, the petitioner herein, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His initial petition stated nine separate grounds for the issuance of the writ. In response to pleadings filed by the respondent, this court entered an order on November 7, 1975 dismissing most of the grounds stated therein, but ruling that an evidentiary hearing was necessary as to the following three contentions:

1. That the petitioner was denied due process of law by virtue of the state's suppression of an exculpatory statement from one Victor John Harvey.

2. That the petitioner was denied due process by the State's failure to disclose a promise of leniency made to Robert Perry, the State's key witness.

3. That the petitioner was denied due process and his right to effective counsel by the involvement of Robert Perry and his counsel in the strategy and planning councils of the defense.

The evidence presented at this hearing raised substantial constitutional questions with regard to each of these contentions. The petitioner's most compelling argument, however, concerns the failure of the state to divulge the pretrial statement made by Victor Harvey. Since the court is compelled to find, for the reasons stated below, that the petitioner's constitutional right to a fair trial has been violated by the State's suppression of this evidence, it is unnecessary to reach the other issues raised by the petitioner.

The petitioner was indicted along with Marvin Bobo, Victor Harvey, James Moore and Robert Perry on October 1, 1971 and charged with murder in the first degree and with shooting with intent to kill or wound, in connection with the killing of John Howard Smith and the wounding of Harlowe Tate which occurred on August 7, 1970. He was convicted on March 28, 1972 of second degree murder and shooting with intent to kill or wound and sentenced to an indeterminate life sentence and a concurrent sentence of one to twenty years, which he is currently serving.

The State's theory in its prosecution of the petitioner was based on the liability of an aider and abettor as provided in O.R.C. § 1.17. The State alleged that on the evening of August 6, 1970, the petitioner, as leader of an organization called the Afro Set, called a "red alert" meeting of the Afro Set and ordered its members to shoot police officers and security guards randomly in retaliation for the fatal shooting of one Willie Lofton, an Afro Set member, by a security guard. The State contended that, pursuant to these orders, Afro Set members Marvin Bobo, James Moore, Victor Harvey and Robert Perry, riding together in Marvin Bobo's automobile, committed the shootings in question in the early morning of August 7, 1970. The State's case rested principally upon the testimony of Robert Perry, who had become a confidential F.B.I. informant a few months prior to the petitioner's trial. His testimony was the key evidence linking Afro Set members with the shootings of August 7 and establishing that those members were acting at the petitioner's directions.

Victor Harvey was a participant in the shootings and, at the age of 15, one of the original defendants in this case. The charges against him in this case were, however, ultimately dropped by the State. While in custody at the Juvenile Detention Home, Victor Harvey was questioned by and made a statement to the Cleveland Police. The written portion of this statement, typed by a member of the Cleveland Police and signed by Victor Harvey, is an account of events of the night in which the shootings occurred. Victor Harvey states therein that he heard of the killing of Willie Lofton at McDonalds restaurant at the Afro Set Headquarters after a phone call came in to the shop; that he went to McDonalds with the others at the shop; that he then rode to 55th street with Marvin Bobo, who parked his car on Authwaite; that he waited near the car while Bobo walked toward 55th street; that he saw a shotgun in the trunk of Bobo's car while at 55th street; that Bobo returned with James Moore and Robert Perry; and that all four left in Bobo's car. The statement continues to recount a series of shooting incidents, which include those involving John Howard Smith and Harlow Tate, committed that night by these four individuals. Nowhere in the statement is there any mention made of a meeting at the Afro Set Headquarters or of any directions issued by Harllel Jones. Indeed, there is no mention of Harllel Jones at all in the written statement except the identification of his picture, which is made by Victor Harvey.

The petitioner contends that Victor Harvey was questioned by the police at the time the statement was taken as to the involvement of Harllel Jones and that Harvey orally stated that Jones had neither called an alert nor had any prior knowledge of the killing. No such questioning or statements concerning Jones' involvement appear on the face of the written statement. The petitioner's contention is supported by the testimony of Victor Harvey and his step-father, who was present when the statement was made. The state argues to the contrary that Victor Harvey made no such statement concerning Harllel Jones and that, indeed, he had prefaced his statement with the qualifying remark that he would not comment on any involvement of Harllel Jones. This question of fact is one which cannot be confidently decided on the basis of the evidence received. Analysis of the materiality of the written statement as it appears on its face, however, renders it ultimately unnecessary to resolve this factual dispute.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." In Moore v. Illinois, 408 U.S. 786, 794-795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972) the Supreme Court stated:

The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence.

It is undisputed that the defense made a specific request for the production of Victor Harvey's statement. The state contends, however, that the statement which it received from Victor Harvey was neither favorable to the defense nor sufficiently material to compel production under Brady.

In the state's case in chief, Robert Perry testified that Victor Harvey was at the "red alert" meeting at which Jones ordered the killing and that at that meeting Harllel Jones gave Victor Harvey a shotgun with which to carry out this order. The state contends that since Victor Harvey's written statement does not expressly deny that such a meeting took place or that he received a shotgun from Jones, it cannot be construed as favorable to the petitioner. But, while it is true that the statement is not unambiguous, the failure to mention any involvement of Harllel Jones must certainly be construed as at least "favorable" to the defense. Harvey's statement, after all, gave a fairly detailed account of the events of the night. To the question, "Is there anything else you can tell us about the murder?", Harvey answered "No." The statement would seem, then, to indicate by omission that Harvey did not attend a red alert meeting that night. Harvey, furthermore, stated at one point within his narrative that "I saw a shotgun in the trunk of Bobo's car." This statement seems on its face to indicate that Harvey saw the shotgun for the first time in Bobo's trunk and, hence, that he was not given the gun by Jones. Though the ambiguous nature of the statement could have limited its evidentiary impact had it been introduced at trial, the statement appears on its face to be favorable to the defense.

The harder question is whether the statement is, in view of its ambiguities and omissions, sufficiently material to compel disclosure. The Supreme Court noted in United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342, 350 (1976), that "implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial." Certainly the failure to disclose evidence which, although "favorable" for the defense, is so insubstantial that it could not possibly have affected the outcome would not constitute a constitutional violation.

In Agurs, the Supreme Court established the standard of materiality to be applied to evidence which has not been specifically requested by the defense. The court held that a defendant's constitutional rights have been violated if it can be concluded after examining the entire record that the undisclosed evidence "creates a reasonable doubt that did not otherwise exist." Id., 427 U.S. at 112, 96 S.Ct. at 2401, 49 L.Ed.2d at 355. The court was, however, careful to note that this standard of materiality was "not necessarily the same" as that which should be applied in cases where the undisclosed information was specifically requested. The court did not attempt to define the applicable standard of materiality in such cases but clearly indicated that a lesser showing of materiality would...