Blankenship v. Estelle

• Decision Date: 17 January 1977
• Docket Number: No. 75-4255,75-4255
• Citation: 545 F.2d 510
• Parties: Finis Smith BLANKENSHIP, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director of Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 510

545 F.2d 510

Finis Smith BLANKENSHIP, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director of Texas Department of

Corrections, Respondent-Appellee.

No. 75-4255.

United States Court of Appeals, Fifth Circuit.

Jan. 17, 1977.

William P. Pannill, Houston, Tex. (Court-appointed), for petitioner-appellant.

John L. Hill, Atty. Gen., Stephen J. Wilkinson, Asst. Atty. Gen., David M. Kendall, 1st Asst. Atty. Gen., Joe B. Dibrell, Asst. Atty. Gen., Chief, Enforc. Div., John P. Griffin, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before GOLDBERG, SIMPSON and GEE, Circuit Judges.

GEE, Circuit Judge:

Petitioner-appellant Finis Blankenship appeals from the district court's denial, without evidentiary hearing, of his petition for habeas corpus relief from a state court conviction. Petitioner was convicted in a Texas state court as an accomplice to an armed robbery of a Buddies supermarket in Euless, Texas. The State alleged that Blankenship had masterminded the robbery and had forced the State's two young principal witnesses, John Brooks and Charles Crawford, to carry out the crime with petitioner's cousin Odell Blankenship, who was killed during a getaway shootout with police. Crawford and Brooks were caught outside the store, and the day following the robbery both gave independent statements to the police that they had engaged in the robbery at the behest of the other participant, Odell Blankenship, who had planned it and supplied the masks and guns they had used. Neither of the youths even mentioned petitioner Finis Blankenship in the statements to police. Nevertheless, petitioner was subsequently indicted and brought to trial on the accomplice charge.

Petitioner received a pretrial competency hearing at which the jury found him competent to stand trial. Denying petitioner's request to empanel a new jury, the court proceeded to trial on the merits before the same jury which had passed on competency.

Both Brooks and Crawford testified at trial that petitioner Finis Blankenship had planned the robbery and that they had carried it out because of their fear of him. Only their testimony directly linked petitioner to the crime, and the State's "corroborating" evidence was slim. Petitioner denied any connection with the robbery, and his wife testified that he was with her at the time of the offense. Thus, the issue at trial boiled down to a credibility contest between petitioner Blankenship and State witnesses Brooks and Crawford.

Following his conviction, petitioner learned that a fellow prisoner had overheard Brooks prior to the trial discussing a "deal" with the prosecution calling for him and Crawford to testify falsely against Blankenship in exchange for dismissal of the armed robbery and attempted murder charges then pending against them. The charges were, in fact, dropped shortly after petitioner's trial.

Blankenship's conviction was affirmed on appeal by the Texas Court of Criminal Appeals. ¹ Proceeding sometimes pro se and sometimes with appointed counsel, petitioner has several times applied for and been refused habeas relief in the state trial and appellate courts and in the federal district court. From the federal district court's most recent denial of relief, petitioner prosecutes this appeal, raising the following issues:

(1) Whether the district court erred in dismissing petitioner's application without an evidentiary hearing on allegations that petitioner was convicted on perjured testimony knowingly used by the State and that the State had concealed a "deal" with the principal witnesses?

(2) Whether due process requirements were violated by the state trial court's refusal to empanel separate juries to pass on petitioner's competency and on the merits?

(3) Whether admission of evidence of extraneous offenses so prejudiced petitioner as to deprive him of a fundamentally fair trial?

(4) Whether memory lapses of the State's principal witnesses deprived petitioner of his Sixth Amendment right to confront and cross-examine the witnesses against him?

(5) Whether certain evidence introduced to connect him with the robbery was obtained through illegal searches and seizures?

(6) Whether he received ineffective assistance from court-appointed counsel at his trial?

Finding merit in petitioner's objection that the State improperly failed to disclose an alleged prosecutorial deal with its witnesses, we remand to the district court for an evidentiary hearing to determine the truth of petitioner's allegations. We find that none of the other grounds urged by petitioner necessitates federal habeas relief.

I.

Petitioner Blankenship, relying primarily on the due process holding of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), first argues that the lower court erred in denying his application without providing him an evidentiary hearing on his allegation that an agreement to dismiss charges against the main prosecution witnesses in exchange for their testimony was not disclosed to the jury but that, on the contrary, the prosecution allowed to go uncorrected the false impression that Brooks and Crawford would also stand trial for the armed robbery. At Blankenship's trial the prosecutor asked both Brooks and Crawford if they were under indictment for the felony offense of robbery by firearms and each replied, "Yes, sir, I am." R. at 190, 352. On cross-examination Crawford explicitly denied that he had changed his story and testified against Blankenship "to get off the hook." R. at 350. These exchanges undoubtedly created the clear impression that the two witnesses themselves faced trial on the robbery charges, thus appearing to negate any possibility that they were cooperating with the prosecution in exchange for leniency. However, in his pro se applications for writ of habeas corpus both in the state court and in the federal court below, Blankenship alleged that the principal witnesses against him, Charles Crawford and John Brooks, had in fact made a pretrial agreement with the prosecution to testify against Blankenship in exchange for dismissal of the charges against them. In support of this allegation Blankenship furnished with his writ application a statement from a fellow prisoner who had overheard Brooks discussing the deal with his mother, as well as evidence that the charges had been dismissed shortly after petitioner's conviction. The state trial court, the Court of Criminal Appeals, and the court below all denied petitioner's application without any inquiry into the truth of these allegations of an undisclosed prosecutorial deal.

If true, petitioner's allegation that the prosecution struck a pretrial bargain to drop the charges against Brooks and Crawford in exchange for their testimony would place this case squarely within the Giglio rule and entitle Blankenship to a new trial. The prosecutor in Giglio had allowed to go uncorrected the false trial testimony of his principal witness that he had made no deal with the government. In reality, the witness, Taliento, had received a promise that he would not be prosecuted if he testified against Giglio. In reversing Giglio's conviction, the Supreme Court observed:

Here, the Government's case depended almost entirely on Taliento's testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento's credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.

405 U.S. at 154-55, 92 S.Ct. at 766.

Although in the instant case the testimony that Brooks and Crawford were "under indictment" may have been technically true, it left the erroneous impression of an impending trial and the absence of leniency as an inducement to testify. This court has recently made clear that we will not tolerate prosecutorial participation in technically correct, yet seriously misleading, testimony which serves to conceal the existence of a deal with material witnesses. In Dupart v. United States, 541 F.2d 1148 (5 Cir. 1976), a habeas petitioner alleged that the prosecution had knowingly used perjured testimony to convict him. Specifically, Dupart contended that the government's witness, Charles Brown, was a paid informant and had been promised immunity against pending state and federal criminal charges in exchange for his services and testimony against Dupart.

At trial, on direct examination, the following exchange occurred between the Assistant United States Attorney and Charles Brown:

Q: In your dealings with the Bureau of Narcotics and Dangerous Drugs, is this a voluntary act on your part?

A: Yes, Sir.

Q: Have you are you working for the Bureau of Narcotics and Dangerous Drugs because there is a case pending against you, or there has been a case pending against you?

A: No, Sir.

Q: Are you doing did you do what you did voluntarily?

A: Voluntarily, yes, Sir.

Q: Did you volunteer to do this?

A: Yes, Sir.

It is clear that if the government knowingly used perjured testimony to convict the petitioner, even as to matters only affecting the credibility of a witness, then the petitioner would be entitled to relief. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

This Court is aware that "charges" rather than a "case" may be pending against a witness. Likewise a course of conduct though motivated by legally coercive alternatives such as testifying or facing a criminal prosecution, may be considered to be voluntary. However, assuming the allegations to be true, such a formalistic exchange of testimony even though technically not perjurious, would surely be highly misleading to the jury, a body generally untrained in such artful distinctions.

541 F.2d at 1149-50. The Dupart panel reversed the district court's denial of the...