Allridge v. Scott

• Decision Date: 15 December 1994
• Docket Number: No. 93-9137,93-9137
• Citation: 41 F.3d 213
• Parties: Ronald Keith ALLRIDGE, Petitioner-Appellant, v. Wayne SCOTT, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 213

41 F.3d 213

63 USLW 2459

Ronald Keith ALLRIDGE, Petitioner-Appellant, v. Wayne SCOTT, Director, Texas Department of Criminal Justice Institutional Division, Respondent-Appellee.

No. 93-9137.

United States Court of Appeals Fifth Circuit.

Dec. 15, 1994.

Steven M. Schneebaum, Peter D. Robertson, Patton, Boggs & Blow, Washington, DC, for appellant.

William C. Zapalac, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for appellee.

Appeal from the United States District Court For the Northern District of Texas.

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Ronald Keith Allridge was convicted by a jury of capital murder and sentenced to death. He appeals from the district court's decision denying his petition for a writ of habeas corpus. We now affirm the district court's decision to deny the writ.

I.

On March 25, 1985, at approximately 12:30 a.m., Ronald Keith Allridge, Milton Ray Jarmon, and a third accomplice committed armed robbery at a "Whataburger" restaurant in Fort Worth, Texas. Allridge carried a shotgun while his accomplices each carried a handgun. During the course of the robbery, Allridge shot and killed Carla McMillen Otto. The state of Texas indicted and, in September 1985, tried Allridge for the capital murder of Otto.

At trial, the evidence presented showed that there were three gunshots during the course of the robbery. The sequence of events was as follows. Immediately upon entering the restaurant, the third accomplice shot out the glass door on the east side of the restaurant with his handgun; he then remained positioned by the west door for the duration of the robbery. Milton Jarmon went immediately to the ordering counter and leapt over it to ransack the cash registers. In the process of leaping over the counter, Jarmon dropped his handgun, which discharged. At the same time that Milton Jarmon was heading for the counter, Allridge confronted Otto and her two friends, all of whom were seated in a booth. Allridge pointed his shotgun at Otto, tossed a bag at her, and said, "Fill it up bitch." The bag fell to the ground, whereupon Allridge shot Otto.

Although Allridge confessed to killing Otto, he pled not guilty to the charge of capital murder. In his confession to the police, Allridge claimed the shotgun fired accidentally because he was startled by another gunshot. He did not take the stand in his defense, and his confession was only entered into evidence by the prosecution at the sentencing proceedings. In his confession, he stated that the initial shot, which was fired through the glass door, was the shot which startled him. At trial, however, counsel for Allridge claimed that Allridge was startled instead by the shot fired accidentally by Milton Jarmon. Jarmon, in fact, had given a statement to the police which corroborated Allridge's version of the sequence of shots during the robbery, wherein Jarmon said that his gun accidentally discharged as he leapt over the restaurant counter during the robbery. Jarmon also stated that he then heard another shot fire, which both parties agree was the shot by Allridge that killed Otto. Prior to trial, the government informed counsel for Allridge that Jarmon had given a statement to the police. Allridge's counsel requested a copy of Jarmon's statement. The government, citing a longstanding department policy against disclosure of co-conspirators' statements, denied the request. Rather than attempting to procure Jarmon's statement by other means (such as asking Jarmon's lawyer or seeking a court order), counsel for Allridge elected to proceed to trial without the benefit, if any, of Jarmon's statement. ¹ He asserted that he was guilty not of capital murder (i.e., intentional killing during the commission of a robbery) but only of felony murder (i.e., unintentional killing during the commission of a robbery).

Notwithstanding the omission of Jarmon's statement, Allridge submitted other evidence to the jury that validated his version of the sequence of shots. Melvin Adams, an employee at the time of the robbery, gave a statement to the police immediately after the murder. In his statement, Adams stated that he heard three gunshots: the initial shot which broke the glass door, and then two shots in rapid succession right before the robbers left the store. At trial, however, Adams recanted and testified during direct examination by the government that he heard only two gunshots, separated by approximately one minute. Adams testified that he first heard the gunshot that shattered the glass door. He then stated that one of the robbers leapt over the counter to ransack an open cash register and that, in the process, knocked over another register. ² The robber then returned to the other side of the counter and fled the restaurant. During cross-examination, counsel for Allridge seized on Adams' statement to the police, wherein he stated that he had heard three gunshots. Adams denied the accuracy of his statement to the police. Nevertheless, counsel for Allridge entered it into the record.

Two additional witnesses provided testimony that arguably corroborates Allridge's version of events. Sharon Burns testified for the defense that she noticed a robber leap over the counter and also that she heard "two or three" popping sounds. Teresa Barton also testified for the defense that she heard two shots separated by only seconds.

Cary Jacobs, who was dining with Otto at the time of the robbery, testified that as the robbers entered the restaurant, one of them shattered the glass door with a single gunshot. Upon entering with the others, Allridge pitched a bag to Otto and said, "Fill it up, bitch." The bag fell to the ground, whereupon Allridge shot Otto. Jacobs testified that Allridge then ordered Jacobs to "pick up the bag." Jacobs complied, relinquished his wallet, and observed the robbers leaving the store. Jacobs testified that he heard neither Jarmon's gun discharge nor the cash register hit the floor.

Finally, both the defense and the state proffered their own firearms expert. Jack Benton testified for the defense that only 2.5 pounds of pressure was needed to pull the trigger on Allridge's shotgun. ³ Benton further testified that while 2.5 pounds did not qualify as a "hair trigger," it nonetheless was "extremely low." On cross-examination, Benton admitted that he attempted to make the shotgun fire accidentally but failed. Frank Shiller testified as a rebuttal witness for the state that four pounds of pressure is needed to pull the trigger of Allridge's shotgun.

After the presentation of the evidence, Allridge requested the trial court to instruct the jury on two lesser included offenses: murder and felony murder. The court denied Allridge's request and instructed the jury on capital murder and murder only. The jury returned a capital murder verdict in November 1985. In accordance with Texas' death penalty statute, TEX.CODE CRIM.PROC.ANN. art. 37.071(a) (Vernon 1981), ⁴ the trial court held a separate proceeding before the jury to determine whether Allridge should be sentenced to death or life imprisonment. After the presentation of the evidence, the trial court instructed the jury to answer two "special issues:"

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; and

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

Id. art. 37.071(b), (1)-(2). Because the jury unanimously answered both questions affirmatively the trial court in November 1985 sentenced Allridge to death. The Texas Court of Criminal Appeals affirmed Allridge's conviction and sentence in May 1988. See Allridge v. State, 762 S.W.2d 146 (Tex.Crim.App.1988). The United States Supreme Court finalized Allridge's conviction and sentence when it denied his writ of certiorari in February 1989. Allridge v. Texas, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989). Allridge then commenced state habeas proceedings. After his petition for state habeas corpus relief in the Texas Court of Criminal Appeals was denied, see Ex Parte Allridge, 820 S.W.2d 152 (Tex.Crim.App.1991), Allridge filed a petition for habeas corpus in federal district court, pursuant to 28 U.S.C. Sec. 2254 (1988). The district court denied the petition. Allridge now appeals the district court's denial of his habeas petition, presenting several issues on appeal. We affirm.

II.

In his first claim, Allridge contends that the state failed to disclose material and exculpatory evidence to him at trial. Prior to trial, Allridge filed a motion to require the government to disclose evidence tending to exculpate Allridge. The state did not disclose Jarmon's confession. Allridge now claims that the state's failure to disclose Jarmon's confession violated his Fourteenth Amendment right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Supreme Court has established that a prosecutor must disclose evidence to a criminal defendant if that evidence is (1) favorable to the defendant, and (2) material to the defendant's guilt or punishment. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. We have defined "material" to mean a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. United States v. Weintraub, 871 F.2d 1257, 1261 (5th Cir.1989).

Allridge contends that he has a valid Brady claim with regard to the Jarmon statement. First, he claims the statement is favorable because it buttresses his version of events. Specifically, Allridge claims that Jarmon's statement corroborates Allridge's contention that the accidental firing of Jarmon's gun startled him, causing the "accidental" shotgun blast that killed Otto. Second, he claims the statement is...