Bartholomew v. Wood

• Citation: 34 F.3d 870
• Decision Date: 06 September 1994
• Docket Number: No. 93-35549,93-35549
• Parties: Dwayne Earl BARTHOLOMEW, Petitioner-Appellant, v. Tana WOOD, Superintendent of the Washington State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 870

34 F.3d 870

Dwayne Earl BARTHOLOMEW, Petitioner-Appellant, v. Tana WOOD, Superintendent of the Washington State

Penitentiary, Respondent-Appellee.

No. 93-35549.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 1994.

Decided Sept. 6, 1994.

Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, WA, for petitioner-appellant.

Thornton Wilson, Asst. Atty. Gen., Olympia, WA, for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: WRIGHT, TANG, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Dwayne Bartholomew, a Washington State prisoner, was convicted of aggravated first degree murder. Although he was originally sentenced to death, the Washington Supreme Court reversed his sentence, and after a sentencing retrial he received a sentence of life without possibility of parole. Upon exhausting his remedies in the state courts, he brought this habeas corpus petition, which the district court denied. On appeal, Bartholomew claims that the state violated due process by failing to disclose that its crucial witness on the issue of premeditation had failed a polygraph test. He contends that, if the prosecution had disclosed the information, he would likely have been convicted of simple rather than aggravated first-degree murder. Had Bartholomew been convicted of the lesser murder charge, he would, at an elderly age, become eligible for parole. Instead, because of the degree of his conviction, he is ineligible for release from prison at any time during his lifetime.

Because the state has admitted that it did not disclose the adverse results of the polygraph test administered to its key witness, and because that failure undermines confidence in Bartholomew's conviction of the aggravated offense, we reverse and order the district court to issue a writ directing the state either to grant Bartholomew a new trial on the question of premeditation or to reduce the degree of the conviction to simple first degree murder.

I.

On August 1, 1981, Dwayne Bartholomew robbed a Tacoma laundromat. During the course of the robbery, he fired two shots with a .22 caliber pistol. One bullet struck and killed the attendant, while the other was found lodged in a counter near the body. Bartholomew confessed to committing the robbery and to firing the fatal shot. He has never challenged the voluntariness or validity of this confession. At trial and on this appeal of the denial of his habeas petition, Bartholomew's claims have revolved around a single, narrow issue: whether he had the requisite mens rea to be convicted of aggravated first degree murder under Washington law (which requires premeditation), or whether he could only have been convicted of simple first degree murder (for which a felony-murder theory is sufficient). ¹ Bartholomew asserts that he did not have the premeditated intent to kill the laundromat attendant.

The crucial witnesses against Dwayne Bartholomew were Dwayne's brother Rodney and Rodney's girlfriend, Tracy Dormady (who was pregnant with Rodney's child at the time Dwayne committed the crime). Rodney and Tracy's testimony provided the only direct evidence that Dwayne had the premeditated intent to kill: they testified that he had told them he intended to rob the laundromat and leave no witnesses. Dwayne Bartholomew's defense centered on the assertion that Rodney had been involved in the robbery and that Rodney and Tracy were lying, out of self-interest, about the part of their testimony upon which the state relied to establish Dwayne's premeditation.

After the trial at which he was convicted and sentenced to death, Dwayne discovered that, at the request of the prosecution, Rodney and Tracy had submitted to polygraph examinations. The results of Tracy's test were inconclusive, but Rodney's suggested that he was untruthful when he gave negative answers to the two relevant questions: whether he in any way helped Dwayne to rob the laundromat, and whether he and Dwayne had at any point been inside the establishment at the same time on the night of the robbery. Although the state's attorney has asserted throughout the entire course of these proceedings that the prosecution maintained an open-file discovery policy, the existence of these examinations, and their results, had not been disclosed to the defense. Indeed, the prosecution initially denied that any tests took place. ² However, it eventually conceded that the tests had indeed been administered and that the state had suppressed the results.

Dwayne Bartholomew moved for a new trial, in part on the basis of the newly-discovered polygraph results, but the trial court denied the motion. On appeal, the Washington Supreme Court affirmed Bartholomew's conviction. See State v. Bartholomew (Bartholomew I), 98 Wash.2d 173, 654 P.2d 1170 (1982). It rejected his claim that the state violated due process by failing to disclose Rodney's polygraph results. Although the court affirmed Bartholomew's conviction of aggravated first-degree murder, it reversed his death sentence because it held that the Washington death penalty statute was unconstitutional as applied. It adopted a narrowing construction of the statute and remanded for a retrial of the penalty phase under the narrowed construction. The state sought review of this decision in the U.S. Supreme Court, which vacated the Washington Supreme Court's decision and remanded for reconsideration in light of Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). See Washington v. Bartholomew, 463 U.S. 1203, 103 S.Ct. 3530, 77 L.Ed.2d 1383 (1983). On remand, the Washington Supreme Court adhered to its earlier decision and remanded for a penalty retrial. See State v. Bartholomew (Bartholomew II), 101 Wash.2d 631, 683 P.2d 1079 (1984). The Washington Supreme Court held that the polygraph results would be admissible on remand. See id. 683 P.2d at 1088-89.

After the decision in Bartholomew II, the county prosecutor determined that the evidence did not support a sentence of death under the narrowing construction adopted by the state Supreme Court. The prosecution and defense filed a joint motion for a sentence of life imprisonment without parole. Because the trial judge doubted that the prosecutor could decline to seek the death penalty at so late a stage of the proceedings, he appointed special counsel to argue that the state lacked discretion to do so. After hearing argument from both parties and the special counsel, the trial court denied the joint motion and ordered that a new sentencing hearing take place. The prosecution and defense appealed. In a six-to-three decision, the Washington Supreme Court held that "[t]he prosecution has no right, statutory or constitutional, to usurp the jury's functions to determine mitigation in this case, and make the decision whether the defendant should live or die." State v. Bartholomew (Bartholomew III), 104 Wash.2d 844, 710 P.2d 196, 200 (1985) (emphasis in original). Thus, the court remanded "with instructions that the prosecutor present this case to a sentencing jury for trial of the penalty phase of this case." Id.

The penalty retrial occurred in the fall of 1986. The defense offered the results of Rodney Bartholomew's polygraph test. It also challenged several other items of evidence that had been introduced at the original penalty trial. The jury returned a verdict of life imprisonment without parole, the more lenient of the two sentences it was free to impose.

After exhausting his state remedies, Bartholomew filed this federal habeas petition in the District Court for the Western District of Washington in 1991. Among other claims, the petitioner alleged that the state had violated due process by failing to disclose the polygraph results to the defense prior to trial of the guilt phase and that Bartholomew's trial counsel had been ineffective because he failed to discover that the polygraph tests had been conducted and he failed to undertake a sufficient investigation of the operation of the gun used in the robbery. After an evidentiary hearing, the district court denied the petition. It held that Bartholomew had failed to show that any errors on the part of his attorney prejudiced his defense. It also held that he had failed "to show that disclosure of the results of the polygraph to defense counsel would have had a reasonable likelihood of affecting the verdict." The district court granted a certificate of probable cause, and Bartholomew filed this appeal.

II.

Bartholomew contends that the state violated the Due Process Clause when it failed to disclose that Rodney Bartholomew had failed the lie detector test. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The state concedes that it failed to disclose the test or its results, and there is little doubt that the results of the test were favorable to Dwayne Bartholomew. However, the state argues that the polygraph results were not material to the question of the degree of Bartholomew's guilt because polygraph results are generally inadmissible under Washington law, and because Rodney and Tracy's testimony was not the only evidence tending to show premeditation. We reject these arguments. Having reviewed the state court record, we conclude that there was a reasonable probability that Bartholomew would have been convicted of simple instead of aggravated first degree murder if the polygraph results had been disclosed. ³

In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. at 1196. By its terms, Brady 's holding was limited to cases in which the defendant made a request for the suppressed evidence. However, the Supreme Court made clear in United...