Blair v. Armontrout, 85-0155-CV-W-5.

• Decision Date: 22 August 1986
• Docket Number: No. 85-0155-CV-W-5.,85-0155-CV-W-5.
• Citation: 643 F. Supp. 785
• Parties: Walter J. BLAIR, Petitioner, v. Bill ARMONTROUT, Warden, Missouri State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Missouri

643 F. Supp. 785

Walter J. BLAIR, Petitioner, v. Bill ARMONTROUT, Warden, Missouri State Penitentiary, Respondent.

No. 85-0155-CV-W-5.

United States District Court, W.D. Missouri, W.D.

August 22, 1986.

Bernard Rhodes, Gage & Tucker, Kansas City, Mo., for petitioner.

John B. Williams, Jay D. Haden, Office of County Counselor, Kansas City, Mo., for respondent.

ORDER

SCOTT O. WRIGHT, Chief Judge.

Petitioner Walter Junior Blair, who is currently confined in the Missouri State Penitentiary, Jefferson City, Missouri, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Blair was convicted of capital murder for the 1979 contract killing of a rape victim who was scheduled to testify. Blair was sentenced to death, and on March 14, 1985, this Court granted Blair's request for a stay of execution pending resolution of this habeas petition. On August 9, 1985, this Court granted Blair's motion to disqualify the Attorney General's Office of the State of Missouri from representing the respondent, as Blair's former attorney who represented him in connection with his state post-conviction remedies became employed as an Assistant Attorney General in the Criminal Division. Thus, it was not until November 27, 1985, that substitute counsel answered the Court's show cause order why a writ of habeas corpus should not issue. Then on June 3, 1986, Blair filed his traverse to the State's response.

Blair advances basically five claims for the Court's consideration:

1. At the time of trial there existed a leniency agreement between the prosecuting attorney's office and a State's witness, Ernest Jones, which was undisclosed to Blair and his defense attorneys, despite proper request, in violation of the Fourteenth Amendment Due Process Clause.

2. The jury at the trial was "death qualified," in violation of the Sixth Amendment, and the Fourteenth Amendment Due Process Clause.

3. Blair's attorney was excluded from a pre-trial interrogation, despite request, in violation of the Fifth, Sixth and Fourteenth Amendments.

4. The trial court failed to instruct the jury on the offense of murder in the first degree in violation of Article I, § 10 clause 1 of the Eighth Amendment, and the Fourteenth Amendment Due Process and Equal Protection clauses.

5. The jury instructions and argument by the prosecuting attorney constituted an overreaching plea for death in violation of the Eighth Amendment and the Fourteenth Amendment Due Process.

For the following reasons, the petition for a writ of habeas corpus will be denied.

1. Undisclosed Leniency Agreement¹

Blair charges that the State failed to disclose explicit or implied agreements made between Ernest Jones, a witness for the prosecution, and his attorney in connection with Jones' pending assault, possession and burglary charges prior to his testimony at Blair's trial. Blair contends that the State, by withholding such facts, rendered his trial fundamentally unfair in violation of Due Process Clause of the 14th Amendment of the United States Constitution.

Blair alleges that the suppression of the facts surrounding the "deals" between the witness and the State and the failure of Assistant Jackson County Prosecutor James H. Bell to correct Jones' false testimony, significantly prejudiced the jury and provided Jones with an incentive to alter his testimony in exchange for lenient treatment on his pending charges before the court. Blair relies on the recent case of United States v. Bagley, ___ U.S. ___, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), in which two state witnesses made false statements denying any arrangements with the State for their testimony during Bagley's trial. The court found that the prosecutor failed to disclose evidence that the defense might have used to impeach the witnesses by showing bias or interest, thereby withholding evidence favorable to the accused. See also, Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1962). However, the court qualifies this non-disclosure by requiring a finding of materiality of the evidence. "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 105 S.Ct. at 3384. See also, United States v. Bigeleisen, 625 F.2d 203 (8th Cir.1980).

The State alleges, however, that Jones had no knowledge of any arrangement between his attorney and Bell, and therefore, he was in no way influenced in his testimony at Blair's trial. This statement is supported by Jones' denial, at Blair's trial, that any "deals" had been made with him on his three pending charges (Trial Tr. at 1498). However, this contradicts the testimony given by Bell himself at Jones' sentencing (subsequent to Blair's trial) in which he stated that he had discussed with Jones and his attorney the possibility of a "lenient disposition" of Jones' case (pending assault, possession and burglary charges) in exchange for his cooperation. Further, Jones' attorney, Peter Sterling, stated at Blair's evidentiary hearing on Rule 27.26 motion that he advised Jones that he would not go to the penitentiary if he testified in Blair's case. Both counsel stated, under oath, that Jones had been informed of a possible plea bargain with the State for his testimony.

The State further contends that even if such facts had been disclosed, the outcome of the case would not have been altered. The State notes that Jones had already admitted to "potentially impeaching facts" in his testimony whereby, in exchange for his testimony, he would not be charged with capital murder, his pending probation would not be revoked and that he was the recipient of a $2,500 award. The State contends that an additional alleged "deal" could not materially affect the jury's belief in Jones' testimony. Furthermore, Jones' testimony, while certainly helpful in developing the facts of the crime, was not essential in proving Blair's guilt. Blair's three separate confessions, and the testimony of Sharon Jones (no relation to Ernest Jones), showed that Blair had been hired to murder, that he stalked the victim over a period of weeks, and that he eventually killed her. Thus, under the Bagley standard, the Court finds there is no reasonable probability that had this evidence been disclosed, the outcome of the trial would have been different.

2. Death Qualification of Jury

Blair alleged that the "death qualification" of the jury panel at his trial did not result in the selection of an impartial jury, in violation of the Sixth Amendment of the U.S. Constitution. The State argues failure to exhaust state remedies, but this argument is moot in light of the case of Lockhart v. McCree, ___ U.S. ___, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), where the United States Supreme Court overruled the recently decided 8th Circuit decision of Grisby v. Mabry, 758 F.2d 226 (8th Cir. 1985) by holding that the removal of prospective jurors prior to the guilt phase of a capital trial who possess a strong opposition to the death penalty does not violate the Sixth Amendment right to a jury selected from a fair cross-section of the community.

Therefore, Blair's second point is not a basis for issuing a writ of habeas corpus.

3. Exclusion of Blair's Attorney²

Blair alleges that although he waived his Miranda rights to have an attorney present during his interrogation at the prosecutor's office, such waiver is "inoperative because of his belief that an assertion of his Miranda rights would be ineffectual." Blair does not contend, however, that prohibiting his attorney from seeing him constituted a Sixth Amendment violation of his right to counsel. At the time in question, Blair was merely being held for interrogation purposes, before any charges had been formally brought against him. See Moran v. Burbine, ___ U.S. ___, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); and Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

Blair claims that according to his testimony at the suppression hearing, he knew that Kevin Locke, his attorney, was denied access to him by the members of the prosecutor's office. Trial Tr. 122. Aware of Locke's unsuccessful attempts to speak with him, Blair alleges that this affected him in his decision to waive his Miranda rights. He claims that he believed all attempts to reach an attorney would be futile, so he consented to answer the prosecutor's questions. Blair relies primarily on Moran v. Burbine, supra, in which a suspect, unaware of his attorney's attempts to reach him, voluntarily waived his Miranda rights to have counsel present. The Court in that case found that the defendant's Miranda rights were not violated, but noted that any unsuccessful attempt by counsel to contact a suspect would in no way affect that person's waiver of his rights "unless he were at least aware of the incident." Moran, 106 S.Ct. at 1142. This tends to suggest that the court would decide differently if Blair had in fact known that Locke was denied access to him. However, all of the testimony of the members of the prosecutor's office and that of Locke himself is contrary to Blair's claim.

According to the testimony of Kevin Locke during direct examination by Mr. Schwarz at Blair's suppression hearing, Locke stated that after he arrived at the prosecutor's office, he saw Blair in the hallway. Blair, in response to a question of one of the men holding him, stated, "That's my attorney." No further conversation between Blair and Locke ensued. Locke was then brought into the office library by Pat Hall, at which time Pat informed Locke that he would be unable to speak with Blair. No one else was in the room at that time, and the door to the library was shut. After their conversation, Locke left the prosecutor's office and proceeded to the Court of Appeals. At no time, according to Locke, did Blair...