Skinner v. Cardwell

Decision Date29 November 1977
Docket NumberNos. 76-2988 and 76-2991,s. 76-2988 and 76-2991
Citation564 F.2d 1381
PartiesRobert Lee SKINNER, Plaintiff-Appellant, v. Harold J. CARDWELL, Warden, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Robert J. Hirsh, Tucson, Ariz., for plaintiff-appellant.

Bruce E. Babbitt, Atty. Gen., Phoenix, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before BROWNING and CARTER, Circuit Judges, and ENRIGHT, * District Judge.

JAMES M. CARTER, Circuit Judge:

This is an appeal by plaintiff Robert Lee Skinner from the denial of his petition for a Writ of Habeas Corpus. Skinner was convicted by jury in the state of Arizona of armed robbery and first degree murder. His conviction was affirmed by the Arizona Supreme Court.

On appeal to this court Skinner contends that the petition for Habeas Corpus was improvidently denied for four reasons: (1) the prosecution allegedly failed to disclose material information; (2) certain attempts by Skinner's counsel to cross-examine were curtailed; (3) a prosecution witness was permitted to take the stand and assert his right not to testify due to self-incrimination; and (4) the trial judge made purportedly inconsistent rulings with respect to prosecution and defense efforts to introduce prior statements of witnesses. Finding none of these claims meritorious, we affirm.

I. FACTS.

In the fall of 1969, plaintiff Robert Skinner and two friends, Paul Wright and Donnell Thomas, began planning to rob the Crown Liquor Store in Tucson, Arizona. On September 6, 1969, they approached George McDonald, requesting his assistance in the robbery. McDonald asked that they wait until he returned from a planned trip to California. On the 11th of September, 1969, McDonald returned to Tucson from his trip to California. Plaintiff Skinner then renewed the request for assistance in the robbery of the liquor store. He stated that Wright, Thomas and another unknown person were going to rob the store. McDonald refused to assist because he felt that a fellow black man who was working at the store, Mason Branch, might get hurt.

This refusal caused the group to temporarily postpone their plan. However, on the next day, they decided again to commit the robbery. They showed McDonald three pistols two .22's and either a .25 or a .32 caliber pistol. This still left them one gun short since a fourth partner, David O. Williams, had been enlisted.

Skinner and his three associates, Thomas, Wright and Williams, spent the day together. That evening, seeking the fourth gun, the four men went to the apartment of Lucias Sorrell. Thomas asked Sorrell if he could borrow a gun. Upon learning from Sorrell that they would be charged for the use of the gun, they left to look elsewhere.

Later at about 8:00 p. m. the four men returned to Sorrell's apartment and informed him that they no longer needed his gun. They remained for approximately 15 minutes and then left together. Sorrell remained for about another 15 minutes and then he himself went out. As Sorrell was leaving he observed plaintiff Skinner and the other three mean running across Mansfield Park away from the direction of Crown Liquor Store.

A neighbor heard shots in the liquor store between 8:30 and 8:45 p. m. Other visitors of the liquor store were able to establish that the robbery must have taken place shortly after 8:40 to 8:50 p. m. At that time a customer entered the store, found the body of Mason Branch dead on the floor and called the police. The police ascertained that the store had been robbed of $275.00. Mason Branch had been shot at least five times. The cigar box container used to keep money for newspapers in the store was found beside the body of Branch with a fingerprint of David O. Williams on it.

Skinner was tried for armed robbery and murder in the state court of Arizona, The jury returned a verdict of guilty of armed robbery and first degree murder. Plaintiff was sentenced to life in prison on the murder charge and eight to ten years on the robbery charge, both sentences to run concurrently.

On appeal the Supreme Court of Arizona affirmed the conviction. State v. Skinner, 110 Ariz. 135, 515 P.2d 880 (1973). Skinner then filed a petition for a Writ of Habeas Corpus on February 18, 1975, in the U.S. District Court for the District of Arizona. The district judge held a hearing and denied the petition.

II. ISSUES.

A. Was plaintiff denied a fair trial because the prosecution failed to disclose material information?

B. Was plaintiff's Sixth Amendment right to confrontation violated when his attorney was denied the right to cross-examine a prosecution witness about information allegedly relevant to impeachment of another prosecution witness?

C. Was plaintiff denied due process of law when a witness was allowed to take the stand and refuse to testify because of his Fifth Amendment right against self-incrimination?

D. Did the trial judge violate plaintiff's rights to due process or equal protection by its rulings on the admissibility of prior statements?

III. DISCUSSION.

A. DISCLOSURE OF MATERIAL INFORMATION.

1. Failure to Disclose a Written Plea Agreement.

To procure the testimony of witness Lucias Sorrell the prosecution had to enter a written plea agreement with him. In exchange for Sorrell's testimony against Skinner the prosecutor agreed to reduce certain felony charges against Sorrell to two misdemeanors and to recommend the sentence be time served. Although circumstances at the trial show that the existence of this agreement was known to plaintiff's counsel, no specific request for disclosure of the details of the agreement seems to have been made. The prosecution did not on its own provide a copy of the written agreement to Skinner.

Based on the failure of the prosecution to disclose the written details of the plea agreement, Skinner claims a violation of his right to due process. He contends that the nondisclosure was willful and material wherein it hid from the jury information which impeached the validity of Sorrell's testimony.

The standard by which we test prosecutorial failures to disclose material information is provided by the recent Supreme Court decision in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). We have recently explained that Agurs provides for different standards to be applied to different nondisclosures, depending on the nature of the information withheld and the type of request made by the defendant for production of the material. 1 See United States v. Brown, et al., 562 F.2d 1144 (9 Cir. 1977), Nos. 76-2925, et al.

When the material at issue is not perjured testimony and has not been specifically requested by the defense, as in this case, Agurs makes it clear that the prosecution has no constitutional duty to routinely disclose information in its possession. The Court explained:

"It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt, whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." 427 U.S. at 112, 96 S.Ct. at 2401 (Emphasis added). See also United States v. Brown, supra, 562 F.2d at 1151.

Furthermore, as we noted in Brown, supra, the Court in Agurs clarified that the prosecution's constitutional obligation to disclose in these conditions is not "measured by the moral culpability, or the willfulness, of the prosecutor." "If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor." United States v. Agurs, supra, at 427 U.S. at 110, 96 S.Ct. at 2400. See also Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1965).

Accordingly, we must determine whether, based on the entire record, the failure to disclose the actual written form of the plea agreement creates a reasonable doubt about Skinner's guilt that did not otherwise exist. When the record is reviewed in this light, no reasonable doubt can be illustrated.

First, although the actual written details of the agreement were not disclosed, it is certain that both the defense and the jury knew of both the existence and the basic content of the agreement. Sorrell's attorney testified at the habeas corpus hearing that he informed the defense ahead of time of his intention to get "the best deal I can" for Sorrell in exchange for his testimony. Habeas Corpus Reporter's Transcript, Vol. II at 41. The events surrounding Sorrell's testimony confirmed this. Sorrell first took the stand, before any agreement had been reached, on March 4, 1971. At that time he virtually refused to testify by being evasive and belligerently unresponsive. His testimony was completely uninformative. However, on March 8, 1971, during his next examination on the stand, Sorrell became markedly more cooperative and testified fully. The implication was apparent that Sorrell was testifying in return for some favor from the state.

Even so, the jury was not left to speculate. On cross-examination Skinner's counsel obtained from Sorrell the explanation for his sudden willingness to testify. Sorrell explained that during the intervening weekend, he, his attorney and the prosecutor had reached an agreement whereby certain felony charges outstanding against Sorrell would be reduced to misdemeanors in exchange for his testimony. 2 The jury was thus apprised of the existence of the agreement and its basic substance. Only the agreement to recommend time served remained unrevealed.

Second, the content of the plea agreement is relevant for impeachment purposes. In that...

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