Brown v. Borg

• Citation: 951 F.2d 1011
• Decision Date: 06 December 1991
• Docket Number: No. 91-55148,91-55148
• Parties: Titus Lee BROWN, Jr., Petitioner-Appellant. v. Robert BORG, et al., Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1011

951 F.2d 1011

Titus Lee BROWN, Jr., Petitioner-Appellant. v. Robert BORG, et al., Respondents-Appellees.

No. 91-55148.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1991.

Decided Dec. 6, 1991.

Michael M. Crain, Klein & Crain, Los Angeles, Cal., for petitioner-appellant.

Donald F. Roeschke, Deputy Atty. Gen., Los Angeles, Cal., for respondents-appellees.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER, D.W. NELSON and BRUNETTI, Circuit Judges.

FLETCHER, Circuit Judge:

Titus Lee Brown was convicted of first-degree murder in a trial in which the prosecutor knowingly introduced false evidence and then relied on that evidence in pressing for conviction in her final argument to the jury. (The false evidence suggested that the decedent had been murdered during the course of a robbery, when in fact the items allegedly stolen had been returned to the decedent's family by hospital staff who presumably found them on the decedent's body.) Upon learning of the prosecutor's misconduct, the trial judge declined to order a new trial, but reduced Brown's conviction from first to second-degree murder on the theory that the false evidence related only to the degree of the offense--i.e. whether Brown had committed felony murder--and not to Brown's guilt or innocence. The district court dismissed Brown's petition for a writ of habeas corpus. We reverse.

FACTS

Israel Guzman Rangel ("Guzman") was stabbed to death in a parking lot in South Central Los Angeles shortly after midnight on August 17, 1984; the petitioner, Titus Lee Brown, was indicted for the murder. At the ensuing jury trial, the prosecution argued the theory that Guzman had been killed when Brown and an unnamed accomplice robbed him of his wallet and jewelry. The chief witness for the prosecution was Ricardo Pimental Baldavinos ("Pimental"). Pimental testified that he saw Guzman being attacked by two men. Pimental drew his unloaded gun and approached the assailants in an attempt to scare them away. Presented with a series of photo lineups a few days later, he identified Brown as the killer. Pimental's identification testimony had numerous weaknesses, as brought out in a lengthy cross-examination by Brown's counsel.

Among these weaknesses were the fact that the incident occurred at night; Pimental had never seen the assailant before; he only saw the assailant briefly, though his estimates of time varied from "a couple of seconds" to "five minutes"; he had been drinking earlier in the evening; he could not recall whether the assailant had facial hair; when first contacted by the police, Pimental denied any knowledge of the incident; and Pimental failed to identify Brown's photo when presented in a photo lineup at trial.

Neither Pimental nor any other prosecution witness offered eyewitness testimony of the alleged robbery. As proof of the robbery, the prosecution first presented a ring that had been found on the street at the scene of the crime. Guzman's uncle, a Mr. Rodriguez, testified that the ring had belonged to Guzman, who wore it on his middle finger because it was too large to fit properly on his ring finger. In response to a question about what jewelry Guzman customarily wore on his hands, Rodriguez volunteered that Guzman also customarily wore a neck chain. Following defense counsel's objection, the jury was instructed to disregard the testimony about the chain.

The prosecution further offered the testimony of Detective J.D. Furr, a police officer who investigated the crime. Furr offered his expert opinion that Guzman had Q: (Prosecutor): What other facts, other than your interview with the brother, did you base your opinion on?

                been killed during a robbery.   Furr testified that his opinion was based on an examination of the scene of the crime, the ring found on the ground, interviews with the victim's family, and the fact that the victim's wallet and gold chains, which Furr believed the victim had been wearing on the night he was killed, were not found
                

A: (Furr): He was also allegedly wearing some gold jewelry, chains at the time he was last seen which were not present. He was parked in close proximity to a bar frequented by Hispanics, allegedly going to that bar and he had no money at the hospital.

. . . . .

Q: Based on all of those factors, you felt that a robbery, there had been a robbery that had been occurring at the time of the murder; is that correct?

A: That's correct.

Reporter's Transcript at 601-02 (emphasis added).

In her closing argument, the prosecutor repeatedly referred to the alleged robbery and to Guzman's allegedly missing property and urged the jury to return a verdict of first-degree felony murder. The prosecutor's closing argument contained the following remarks:

"There was no testimony presented whatsoever that there was any property of any value found on the person of the victim. No wallet, no gold chains, which the uncle indicated that he had seen on his nephew earlier that evening.... Or any property. The only property that was found at the scene was this ring."

"[A]ccording to the blood trail, according to the detective, that man was ambushed, set upon by those two men at his car."

"That man was set upon, he was jumped for his money and his property."

"It is not an unreasonable inference, ladies and gentlemen, to assume that that missing jewelry was stripped from that man as he was dragged out into the street here and that's how that ring came off that man's fingers. Not that it dropped."

Defense counsel attempted to counter the robbery theory during his closing argument.

"The prosecutor would have you believe that a robbery took place and that the murder arose out of a robbery and that Titus Brown is the killer. The problem with this is that it does not fit the evidence. The evidence does not support a finding of a robbery. For the robbery itself first must be proved beyond a reasonable doubt and to a moral certainty."

"Next officers seem to think that the motive here may have been robbery. They just toss that out. No one looks for any chains. No one looks for any money. It just seems to be thrown out to you as a possible motive. Plus we have no testimony that the victim was wearing any chains that night or he had any money."

"So what really do we have here? We've got no evidence of a robbery. Either from direct evidence or recovered hard evidence. Just the police officer saying well, I think maybe a robbery took place. There is no loot. No evidence of any money or chains on [Guzman] that night. Just the big ring that was found there that the officer even admitted or he originally thought it fell off the guy's finger."

In rebuttal, the prosecution once again alluded to the false evidence.

"Interestingly enough, of course, [defense counsel] had previously argued that there was no evidence of any item of value around the body to have ever been removed, which, of course, is contradicted by Mr. Rodriguez' testimony."

In fact, Mr. Rodriguez testified only that his nephew customarily wore the ring that was found on the scene; a response that he typically wore a gold necklace was stricken.

The trial court instructed the jury on the elements of second-degree murder, wilful and deliberate first-degree murder, and Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish guilt. Absence of motive may tend to establish innocence. You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled.

                first-degree felony murder. 1  It also gave the following instruction on motive
                

CALJIC 2.51. On these instructions, the jury convicted Brown of first-degree murder.

Some days after the jury returned its verdict, the prosecutor revealed to the trial court that an investigator from the district attorney's office had informed her that the allegedly missing wallet and gold chains had been given to Guzman's next of kin by hospital personnel, who presumably had discovered them on Guzman's person. The prosecutor had known this fact before trial, but did not inform defense counsel. Nor did she inform Detective Furr, whose expert opinion rested in part on the absence of those items. The trial court found that the prosecutor's actions--failing to notify defense counsel of material exculpatory evidence and arguing false evidence to the jury--constituted prosecutorial misconduct. The trial court, however, denied defense counsel's motion for a new trial and instead reduced the conviction from first to second-degree murder. Even though the court felt sure that the jury had convicted based on the felony murder theory, it reasoned that there was sufficient evidence on the record to convict Brown of second-degree murder.

Defense counsel renewed the motion for a new trial at sentencing, but it was again denied. The California Court of Appeal affirmed the second-degree murder conviction. People v. Brown, 207 Cal.App.3d 741, 255 Cal.Rptr. 67 (1989). The California Supreme Court denied review, and ordered the Court of Appeal decision de-published. Id. 255 Cal.Rptr. at 67 n. ^*.

His state remedies exhausted, Brown petitioned for a writ of habeas corpus in the federal district court, arguing that the false evidence proffered against him related to his very guilt or innocence, thus rendering his trial fundamentally unfair in violation of his right to due process of law. A magistrate, reviewing the record, concluded that the false evidence submitted and argued to the jury affected only the degree of the crime, and recommended that the writ be denied with prejudice with regard to his current claim, but without prejudice with regard to a possible future petition to reduce the conviction to manslaughter. In a one-page order, the district court adopted the findings,...