Jones v. Jago, s. 77-3182 and 77-3183

• Decision Date: 03 May 1978
• Docket Number: Nos. 77-3182 and 77-3183,s. 77-3182 and 77-3183
• Citation: 575 F.2d 1164
• Parties: Harllel B. JONES, Petitioner-Appellee Cross-Appellant, v. A. R. JAGO, Superintendent, Respondent-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1164

575 F.2d 1164

Harllel B. JONES, Petitioner-Appellee Cross-Appellant, v. A. R. JAGO, Superintendent, Respondent-Appellant Cross-Appellee.

Nos. 77-3182 and 77-3183.

United States Court of Appeals Sixth Circuit.

Argued Oct. 7, 1977.

Decided May 3, 1978.

William J. Brown, Atty. Gen. of Ohio, Simon B. Karas, Columbus, Ohio, for petitioner-appellee cross-appellant.

Gary T. Kelder, Syracuse, Gordon S. Friedman, Cleveland, Ohio, Richard Aynes, Akron, Ohio, for respondent-appellant cross-appellee.

Before CELEBREZZE and ENGEL, Circuit Judges and GRAY, Senior District Judge. ^*

ENGEL, Circuit Judge.

This appeal presents an unusual question concerning the applicability of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and whether under those cases an eyewitness statement suppressed by the government can be exculpatory where it makes no reference to the defendant.

Harllel Jones was convicted in the Court of Common Pleas of Cuyahoga County, Ohio, of murder in the second degree and of shooting with intent to kill or wound. Having exhausted his state court remedies both in direct appeals and in collateral proceedings, Jones filed a petition for a writ of habeas corpus in the district court asserting nine separate reasons for his claim that his state conviction was void. Following a lengthy evidentiary hearing, the district court entered judgment granting the petition for habeas corpus and ordering that Jones be released unless he was retried within ninety days. ¹ We summarize the facts developed at the evidentiary hearing only to the extent necessary to an understanding of the issue reached herein. ²

On August 7, 1970, two shootings occurred in Cleveland resulting in the death of one John Howard Smith and the wounding of one Harlow Tate. More than a year later, Jones was indicted for the offenses along with Marvin Bobo, Victor Harvey, James Moore, Donald Williams, and Robert Perry. The state did not allege that Jones had directly participated in the shooting, but charged that as the head of an organization called the "Afro Set," he called a "red alert" meeting of its members and ordered them randomly to shoot security guards and police officers in retaliation for the earlier fatal shooting of an Afro Set member. The state further claimed that at the same meeting Jones gave Victor Harvey a shotgun with which to carry out those instructions. In his defense, Jones denied ever having given any such instructions, having furnished the shotgun to Harvey, or having otherwise participated in the crimes. The evidence was sharply disputed.

At his trial the principal testimony against Jones was furnished by co-defendant Robert Perry, a member of the Afro Set, who had become a confidential government informant a few months before trial. It was Perry's testimony that the shootings were preceded by a meeting at the Afro Set headquarters presided over by Jones, and that among those present beside himself and Jones were the other defendants, including Victor Harvey, then 15 years old. Perry testified that Jones had supplied Harvey with a shotgun from his office. This testimony was corroborated by another Afro Set member, Kenneth Malone. For the defendant two other members of the same group testified that the entire retaliatory action took place without any authorization or knowledge on the part of Harllel Jones. One of them, Marvin Bobo, also testified that he, not Jones, had given Victor Harvey a shotgun from the trunk of his car.

While in detention at a juvenile home, Victor Harvey was questioned by local police officers and gave a statement, which related in detail his own participation and the participation of others in the shooting spree. However, it made no mention at all of any meeting at the Afro Set headquarters as later described by Perry. Instead Harvey stated that he heard of the killing of the Afro Set member while he was at their headquarters. Thereafter he went to a McDonald's restaurant with the others, and later they separated into two groups for the purpose of the shootings. His statement included the comment that he noticed a shotgun in the trunk of Marvin Bobo's car. There was no mention of Harllel Jones having furnished the gun to Harvey and, of course, the implication was that it came out of the trunk of Bobo's car. At the end of the statement, Harvey was asked if there was "anything else you can tell us about this murder?" He replied "No."

Prior to trial Victor Harvey was declared a material witness for the state and all charges against him were dismissed. Also prior to the trial, Jones' counsel made a timely demand to the prosecution that it produce all exculpatory statements in its possession, either written or oral, and specifically any statements which might have been given by Harvey. Without express mention of Harvey's statement, the court generally directed the prosecution to provide the defense with any exculpatory material. The prosecutor denied having any exculpatory evidence from Harvey or anyone else and did not turn over Harvey's statement. The petitioner never saw the written statement itself until it was produced during the habeas corpus proceedings in the federal district court.

Under the foregoing circumstances the district court held that the nondisclosure of Harvey's statement was a violation of Jones' right to due process under the Fourteenth Amendment as described in Brady v. Maryland, supra, Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), and more recently United States v. Agurs, supra. We agree.

Because the statement itself made no express reference to Harllel Jones, the state urges that it was neutral and hence not favorable to Jones. Whether evidence in written form is exculpatory or favorable is, we think, an issue of fact to be determined not merely from its contents but its significance in the light of all the attendant circumstances. Following a lengthy evidentiary hearing and extensive findings of fact, the district court concluded that Harvey's statement was exculpatory. That the statement itself made no reference to Harllel Jones himself is, of course, a factor carefully to be considered, but we do not deem it controlling, as the state would urge, in the context of the circumstances.

The evidence in the case showed that the Afro Set members had divided into two groups to go out and wreak their vengeance. Riding in the car that was involved in the shootings in question, Harvey was in a position to have knowledge concerning the involvement or non-involvement of Harllel Jones, and of course whether Jones had furnished him the shotgun.

The interest of defense counsel in whether the prosecution had a statement from Harvey was fully justified at the later evidentiary hearing in the district court. Jones and his counsel believed that Harvey, if called to testify at the state trial, would absolve Jones of any knowledge of or participation in the crimes, as did the two other witnesses. ³ Nevertheless, because Harvey had been declared a material witness and because the government had dismissed the charges against him, they were not at all certain of his reliability, especially if it developed that the statement actually incriminated Jones, as indeed, it had the other participants. The question was vital to the defense's decision as to whether to call Harvey. In his opinion, the district judge observed:

But, in fact, the defense was restrained from using Harvey as a witness by the fear that Harvey had made a statement incriminating the petitioner. This fear was generated by the state's own actions particularly its failure to disclose Harvey's statement and certainly was not, under the circumstances, irrational. Despite the fact that Victor Harvey was a direct participant in the killing, the charges against him had been dropped and he had been declared a material witness for the state. . . . Though Harvey was never called as a witness for the state, the risk that he had incriminated Jones in his statement to the police thus appeared to the defense counsel to be too great to allow him to take the stand.

In Moore v. Illinois, supra, the Supreme Court summarized the elements of the Brady rule:

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...