Barbee v. Warden, Maryland Penitentiary

• Citation: 331 F.2d 842
• Decision Date: 29 April 1964
• Docket Number: No. 9063.,9063.
• Parties: William B. BARBEE, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

331 F.2d 842 (1964)

William B. BARBEE, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.

No. 9063.

United States Court of Appeals Fourth Circuit.

Argued January 13, 1964.

Decided April 29, 1964.

Charles Yumkas, Baltimore, Md. (Court-assigned counsel), for appellant.

Loring E. Hawes, Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on brief), for appellee.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and BARKSDALE, District Judge.

SOBELOFF, Chief Judge.

The appellant contends that his conviction in a Maryland state court should be set aside on federal habeas corpus because the prosecutor failed, either through lack of his personal knowledge or for some other reason, to disclose at the trial potentially exculpatory evidence in the possession of the police, thereby causing prejudice to the appellant.

On April 12, 1957, William Barbee was arrested for shooting Jimmy McGee a few days earlier. The police gained possession of a .32 calibre revolver which, according to admissions made by Barbee to the police and repeated at the trial, belonged to him.

Approximately one week later, while in jail awaiting disposition of the McGee case, Barbee was placed in a "line-up" and identified by Officer Donald Fisher of the Baltimore City Police Department as the man who had shot him thirteen months earlier. On the strength of this identification the petitioner was indicted for assault with intent to murder and for unauthorized use of a motor vehicle. The trial was for the 1956 Fisher shooting and for the charge of unauthorized use of an automobile. The petitioner had pleaded guilty and was awaiting sentence on the charge arising from the more recent McGee incident.

At the state trial the following chronology was developed through the testimony of Officer Fisher and two eyewitnesses.¹ On March 6, 1956, the officer was called to assist two persons who were attempting to subdue a man they suspected of having stolen an automobile belonging to one of them. The officer placed the suspect under arrest and took him to a call box. There the man drew a gun, shot the officer, and fled. At the trial more than a year later on May 16, 1957, three witnesses for the state, namely, the officer and the two persons who had called on him for assistance, identified Barbee as the gunman.

Each of the witnesses was shown Barbee's revolver and asked whether he had seen it before. In each instance the witness answered that the revolver exhibited to him was "similar" to the one used in the Fisher shooting, but he was unable to make a positive identification. The weapon was not actually introduced in evidence, but according to the court reporter's account, was offered by the prosecutor for "identification purposes only." Barbee was found guilty.²

No direct appeal was taken, but in due course appropriate state post-conviction relief was sought and denied. Application for federal habeas corpus then followed. The District Judge appointed a lawyer for the petitioner and held a plenary hearing. Concluding that no constitutional right of the petitioner had been abridged, the petition was denied.

Throughout the state and federal post-conviction proceedings Barbee has maintained that he was deprived of due process at his trial. He claims, and the transcript of the federal hearing provides substantiation, that the prosecution produced his revolver in court, offered it for identification and elicited from state witnesses incriminating statements in respect to it without disclosing at any time to the court or to defense counsel reports of ballistics and fingerprint tests made by the police department. These reports cast grave doubt upon Barbee's involvement in the Fisher shooting. Nondisclosure of these documents, he says, was fundamentally unfair notwithstanding the fact that it is not shown that the State's Attorney was himself guilty of an intentional suppression. Indeed, there is nothing to indicate that this official had been told by the police of the existence of the reports.³

The state makes a four-pronged answer. Its position is that the appellant is entitled to no relief because he has failed to show: (1) that the undisclosed evidence had any probative value; (2) that his counsel ever asked that the results of the tests be revealed to him or the court; (3) that the prosecuting attorney had any knowledge of the existence of the reports; or (4) that any prejudice resulted from the nondisclosure.⁴ We shall deal with each of these contentions.

First. That the police reports in question had substantial evidentiary significance is made plain by the testimony of Lieutenant Epple of the Police Department Crime Laboratory at the federal habeas corpus hearing. He stated that Barbee's fingerprints had been submitted to the laboratory for comparison with those found on the automobile driven by Officer Fisher's assailant, and the results were negative. In addition, he read from the ballistics report an account of the police investigation of the crime and the discovery of two spent bullets, one retrieved on the street near the call box, the other found in Officer Fisher's false teeth. From the tests performed on these bullets and the test shots fired with Barbee's revolver, the police report concluded that this weapon was "not wanted in any pending cases in our file." Lieutenant Epple specifically testified that, according to this report, neither of the bullets could have come from Barbee's pistol which the prosecutor had presented in court "for identification." His testimony was that Barbee's gun was a .32 calibre Iver-Johnson, while one bullet recovered from the automobile at the scene of the shooting was .38 calibre, and the object recovered from the officer's false teeth was described as "a part of a bullet" with no further description as to its calibre or otherwise.

In our view, all of this evidence tending to exculpate the petitioner became highly relevant the instant his revolver was produced in open court, formally marked for identification, and witnesses interrogated about it.⁵ Presenting the gun, without explanation or qualification, could not fail to suggest an inference that this was the weapon used to commit the offense for which Barbee was on trial. If this was not meant to be suggested, there was no reason, indeed no justification, whatever for its formal production at the trial. Once produced, it became not only appropriate but imperative that any additional evidence concerning the gun be made available either to substantiate or to refute the suggested inference.⁶ If the pistol was pertinent for any purpose, so also was the opinion of the ballistics expert that it was not the weapon used in the Fisher shooting. We cannot say that the trier of fact would have given no weight to the ballistics report or the expert's testimony. As Judge Edgerton said in Griffin v. United States, 87 U.S.App.D.C. 172, 183 F.2d 990, 993 (1950):

"The case emphasizes the necessity of disclosure by the prosecution of evidence that may reasonably be considered admissible and useful to the defense. When there is substantial room for doubt, the prosecution is not to decide for the court what is admissible or for the defense what is useful."

Second. It is no answer that Barbee's attorney failed to ask for the results of the tests. While a diligent defense counsel might have learned about the police reports, this is too speculative a consideration to outweigh any unfairness that actually resulted at the trial.⁷ He may not have known that tests were made. Indeed he may have been misled into thinking that the tests, if made, supported the state's theory and were adverse to his client, and that otherwise the State's Attorney would not have produced the gun in court.⁸

This is not a case where defense counsel merely made a wrong tactical calculation; it is a case where the inference strongly projected by the state's evidence might have been destroyed by other evidence in its possession but which the police concealed from the court, from defense counsel, and perhaps also from the State's Attorney. In gauging the nondisclosure in terms of due process, the focus must be on the essential fairness of the procedure and not on the astuteness of either counsel.

Third. Nor is the effect of the nondisclosure neutralized because the prosecuting attorney was not shown to have had knowledge of the exculpatory evidence. Failure of the police to reveal such material evidence in their possession is equally harmful to a defendant whether the information is purposely, or negligently, withheld. And it makes no difference if the withholding is by officials other than the prosecutor. The police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State's Attorney, were guilty of the nondisclosure.⁹ If the police allow the State's Attorney to produce evidence pointing to guilt without informing him of other evidence in their possession which contradicts this inference, state officers are practicing deception not only on the State's Attorney but on the court and the defendant. "The cruelest lies are often told in silence." If the police silence as to the existence of the reports resulted from negligence rather than guile, the deception is no less damaging.¹⁰

The duty to disclose is that of the state, which ordinarily acts through the prosecuting attorney; but if he too is the victim of police suppression of the material information, the state's failure is not on that account excused. We cannot condone the attempt to connect the defendant with the crime by questionable inferences which might be refuted by undisclosed and unproduced documents then in the hands of the police. To borrow a phrase from Chief Judge Biggs, this procedure passes "beyond the line of tolerable imperfection and falls into the field of fundamental unfairness."¹¹

Fourth. With respect to the necessity for a showing of prejudice, the cases...