Morris v. Ylst

• Citation: 447 F.3d 735
• Decision Date: 09 May 2006
• Docket Number: No. 05-99002.,05-99002.
• Parties: Bruce Wayne MORRIS, Petitioner-Appellant, v. Eddie YLST, Acting Warden for the California State Prison at San Quentin, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

447 F.3d 735

Bruce Wayne MORRIS, Petitioner-Appellant, v. Eddie YLST, Acting Warden for the California State Prison at San Quentin, Respondent-Appellee.

No. 05-99002.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2006.

Filed May 9, 2006.

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Marianne D. Bachers and Tony Tamburello, San Francisco, CA, for the petitioner-appellant.

Ward A. Campbell, Supervising Deputy Attorney General, Sacramento, CA, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California, Edward J. Garcia, District Judge, Presiding. D.C. No. CV-92-00483-EJG/GGH.

Before FERGUSON, GRABER, and W. FLETCHER, Circuit Judges.

GRABER, Circuit Judge.

A California jury found Petitioner Bruce Wayne Morris guilty of first-degree murder and robbery, and he was sentenced to death in 1987. We have considered his petition for a writ of habeas corpus, and a related mandamus petition, on three previous occasions and have already vacated Petitioner's death sentence and ordered a new penalty-phase trial.¹ In this fourth appeal, we consider the last two remaining guilt-phase issues: alleged failure of the prosecution to turn over material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and alleged presentation of perjured testimony in violation of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (per curiam), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).² For the reasons that we explain below, we affirm Petitioner's convictions. The case is remanded with instructions to grant the writ as to the penalty subject to the state's retrying the penalty phase within a reasonable time.

FACTUAL BACKGROUND

A. The Crimes and the Trial³

In 1985, Petitioner, his girlfriend Avette Barrett, and Barrett's sister Allison Eckstrom hitchhiked from Sacramento to Lake Tahoe, California. The victim, Rickey Van Zandt, picked them up in the Lake Tahoe area. They drove to a campsite some miles north of Lake Tahoe. Petitioner, Barrett, and Eckstrom discussed stealing Van Zandt's van, and Barrett apparently suggested that Petitioner kill him. The prosecution's theory was that while Van Zandt was sleeping, Petitioner hit him in the head with a rock approximately 13 times, then took his body from the van and dumped it down an embankment. Upon discovering that Van Zandt was still alive, Petitioner beat him several times with a stick. Petitioner, Barrett, and Eckstrom then cleaned the van and burned some bloody clothing and blankets. They drove through several states, making purchases with the victim's credit cards. In Nebraska, they picked up a hitchhiker named Tom Logan. Petitioner confessed to Logan that he had killed Van Zandt. Logan fled and called the police, who arrested Petitioner, Barrett, and Eckstrom the next day. Among the items seized by police after the arrest were Petitioner's blood-spattered jeans.

Petitioner confessed to police that he had murdered Van Zandt. Later, while Petitioner was in custody, he sent a letter to Barrett stating, "I've killed once for you, and if I have to I'll do it again!!! And you know that I can, and I don't need a rock to do it either." Petitioner also confessed to fellow inmates that he had murdered Van Zandt.

At his trial, Petitioner claimed innocence. He testified that he did not see the killing; rather, he went fishing and returned to the van to find Barrett and Eckstrom with blood on their clothing. According to Petitioner's testimony, Barrett told him that Van Zandt had tried to rape her, and Eckstrom confessed to having killed him. Petitioner said that he then went to the van, found that Van Zandt was still alive, pulled him out, and moved him to the embankment. Later, Eckstrom saw that Van Zandt was moving and hit him with a stick. Petitioner testified that he falsely confessed to the murder in order to protect Barrett, who he believed was pregnant with his child, and Eckstrom.

Barrett and Eckstrom testified at trial that Petitioner had killed Van Zandt. Both Barrett and Eckstrom were thoroughly cross-examined about inconsistent statements to police and prosecutors; both contradicted themselves on the stand; and both admitted to having lied in the past.

Despite his testimony, the jury convicted Petitioner of first-degree murder and robbery.

B. The Roberts Letter

Barrett sent a letter to her mother, Michele Roberts, on November 1, 1985, which was well before Petitioner's 1987 trial. On November 6, 1985, Roberts forwarded the letter to Phil Lowe, the Sierra County District Attorney who was originally prosecuting the case against Petitioner. Her cover letter to Lowe contained the following statement: "I suppose Pete V. should see the letter also as I received a letter from him (Pete) saying Avette was saying Allison was as guilty as she and Bruce."⁴ The letter from Barrett to Roberts was turned over to the defense before trial and is not at issue in this appeal, but the cover letter from Roberts to Lowe was not turned over until 2004.

At the evidentiary hearing before the district court on federal habeas, Petitioner's trial counsel, Tom Condit, testified that he "didn't think [Roberts' trial testimony] was very effective for our side, because she asserted that the inconsistencies that her daughter had made went to an issue that was not important." He explained that, if he had possessed the Roberts letter, he would have "confronted her with this information and I think possibly gotten her to admit that there was more." Overall, Condit opined that the letter "would have added support to our contention that Avette and Allison were the guilty parties in the killing of Rickey Van Zandt," and "it would have altered the course of our investigation" in that the defense would have interviewed Villareal. Condit further asserted that the letter could have been used to impeach Barrett because Barrett's testimony indicated that she was protecting Eckstrom, while the letter said that Eckstrom was guilty.

C. The Gumz Status Report

At some point after Barrett testified against Petitioner at his trial, Diane Gumz, a legal assistant at the Attorney General's Office, prepared a routine status report on Barrett's case. In relevant part the report reads: "Defendant [Barrett] perjured herself at trial. Prelim set for 6/24/87 was postponed until court transcripts were received to determine exactly what defendant said." In the "future action" section of the report, Gumz made a notation reading: "Pre-prelim 7/22/87 (for determination of Barrett's perjury)."⁵ This report was not turned over to the defense until 2004.

Who saw the Gumz report at the time, and what response (if any) it prompted, is something of a mystery. The prosecution in Petitioner's case was special prosecutor, Gary Rossi. Rossi died in 2002. Robert Marshall, who hired Rossi, testified on behalf of the state at the district court evidentiary hearing. Marshall served as acting District Attorney of Sierra County for approximately six months starting around November 1986, and then returned to the California Attorney General's office, which had supervisory authority over Barrett's case (because the new District Attorney was Barrett's former defense lawyer). Gumz testified that she got the information for status reports from reading documents associated with the case and talking to the attorney assigned to it. She named Marshall as the assigned attorney in the Barrett case, but she did not remember his ever having used the word "perjury" in discussing the case.

Marshall testified that he recalled little about the Morris or Barrett cases and that he did not recall having seen the Gumz status report. He testified that he did not start an investigation into alleged perjury by Barrett at Petitioner's trial, nor did he report it to his superiors. He did not inform Petitioner's defense lawyers about the Gumz status report.

According to Condit, nobody on the prosecution team ever told him that they suspected Barrett had committed perjury. If the Gumz status report, and its notation indicating that Barrett had perjured herself, had been disclosed to him, Condit said, he would have asked for a new trial.

DISCUSSION⁶

A. The Roberts Letter

To establish a Brady violation, the defendant must show that exculpatory or impeaching evidence was suppressed by the state, either willfully or inadvertently, resulting in prejudice. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). With respect to the Roberts letter, we conclude that the government's failure to disclose it did not constitute a Brady violation. The letter is only marginally exculpatory or impeaching, and Petitioner was not prejudiced by the government's failure to turn it over.

The Roberts letter was, at best, minimally exculpatory. It did not say that Petitioner was not guilty, or that he was any less guilty than Barrett or Eckstrom. Instead, it suggested that they were all equally guilty, although it failed to explain why that might be so. The letter does not suggest that Barrett and Eckstrom, but not Petitioner, struck Van Zandt.

Moreover, the letter had limited impeachment value. It is unlikely that defense counsel could have confronted Barrett and Eckstrom with the letter because it contains triple hearsay. Assuming that counsel could have overcome that hurdle, the letter, at most, might have lessened the credibility of Barrett's and Eckstrom's testimony, because they maintained that Petitioner was entirely responsible for the killing.

Even if the Roberts letter had some exculpatory value, Petitioner suffered insufficient prejudice from the government's failure to produce it. In order to make out a Brady violation, the evidence must be material, which means there must be "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding...