Boone v. Paderick

• Decision Date: 13 September 1976
• Docket Number: No. 76-1090,76-1090
• Citation: 541 F.2d 447
• Parties: Leroy BOONE, Appellant, v. E. L. PADERICK, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 447

541 F.2d 447

Leroy BOONE, Appellant, v. E. L. PADERICK, Superintendent of the Virginia State

Penitentiary, Appellee.

No. 76-1090.

United States Court of Appeals,

Fourth Circuit.

Argued June 10, 1976.

Decided Sept. 13, 1976.

Maurice Sercarz and Joseph Delk, Third Year Law Students (Barry Nakell, Chapel Hill, N. C., on brief), for appellant.

Andrew P. Miller, Atty. Gen. of Virginia and Gilbert W. Haith, Asst. Atty. Gen., Richmond, Va., on brief, for appellee.

Before HAYNSWORTH, Chief Circuit Judge, and WINTER and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

Imprisoned for life plus 20 years for armed robbery and statutory burglary, Boone unsuccessfully petitioned the district court for a writ of habeas corpus. We reverse and hold that the writ should issue because the prosecutor concealed an offer of favorable treatment to Boone's principal accuser. Had the jury known of the prosecution witness' compelling motivation to establish Boone's guilt, there is a reasonable likelihood its verdict might have been different. Under such circumstances there is a denial of due process under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).

I.

The promise of favorable treatment in return for cooperation with the prosecution, upon which Boone's petition rests, was made to Eugene Hargrove by Detective Coffield of the Virginia Beach Police Department. According to the record, Coffield told Hargrove that he knew that he (Hargrove) was involved in the robbery of Sandler's Seafood storehouse, that the police department would soon make arrests in the case, and that he better cooperate.

Hargrove did not at once agree to cooperate but later did so upon Coffield's promise that he would not arrest him for the Sandler burglary or for any other offenses which he knew Hargrove to have committed, and that he would use his influence with the Commonwealth Attorney in order to see that he would not be prosecuted. ¹ According to Coffield, Mr. Lyle, the prosecutor in Boone's case, was told about Coffield's promises to Hargrove.

Lyle also testified at the habeas proceedings. He did not deny that Coffield told him of the promises but said he did not remember. Curiously, he stated that, in his own mind, he at all times believed it possible that Hargrove would be prosecuted but that he understood leniency would be appropriate.

Boone's attorney was never informed by the prosecutor or the detective or anyone else of Coffield's representations to Hargrove. But at trial, he apparently suspected as much and attempted to prove Hargrove's bias. On cross-examination he established that Hargrove had not been arrested or prosecuted in connection with this offense, which he freely admitted committing, and additionally brought out that Hargrove was allowed to retain property which he purchased with his share of the proceeds of the crime. But counsel got nowhere in his effort to uncover the prosecutorial bargain. Aided by the prosecutor, Hargrove revealed nothing of Coffield's promises. ²

In closing argument, the prosecutor portrayed Hargrove as one who will swear to his own hurt and change not:

And at no time is anybody more apt to tell the truth than when they are saying something that actually hurts. And that is the principle of law, Gentlemen, that when a declaration is made that if it hurts you it is more likely to mean the truth, no question about that.

And take that test and apply it to Eugene Hargrove, for instance, who has freely admitted participating in a felony, two felonies, which carry the sentences which the Judge just outlined to you.

(Emphasis added.)

Later, he did not shrink from depicting Hargrove as conscience stricken, and crediting him with altruism, clearly implying that Hargrove would not go unpunished:

But I submit to you that we are and I say we I mean you ought to thank God that every now and then somebody's conscience rises to the top and somebody tries to do the right thing. . . .

Every now and then we are lucky enough and I say we, I mean you, too, because you live in this Commonwealth and it's your health and safety that's at stake, just like everybody else's. We are lucky enough to get a case where one of the participants tries to do the right thing.

Now, as I say, it's up the Commonwealth which can designate in what order these cases are to be tried. We chose to try Leroy Boone today, separately, and that's our law-given right.

And I take exception to Mr. Brydges' inferences that Mr. Hargrove will walk the streets free the rest of his life notwithstanding. . . . ³

(Emphasis added.)

II.

A.

Whether Giglio applies depends upon whether the jury may have been falsely led to believe that Hargrove was motivated solely by conscience and altruism and that there was no deal when in truth he responded to Coffield's promises. See United States v. Agurs, --- U.S. ----, ---- n. 9, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Hargrove's flat denial that "they" had told him he would not be charged ⁴ skirts the edge of perjury only because the questioner knew nothing of Coffield's role and "they" embraces others who promised nothing. But the prosecutor made statements which were clearly intended to give the impression that Hargrove knew nothing about possible lenient treatment, that he testified against, rather than in aid of, his penal interest, and that his testimony in general was the product of an active conscience.

We hold that Hargrove's general denial of any promise of leniency, when coupled with the prosecutor's emphasis upon altruistic motivation, constitutes false evidence of which the prosecutor knew or should have known. Cf. Mooney v. Holohan, supra.

B.

The district court reasoned that Giglio was inapplicable because the promise that was made emanated from the police and not the prosecutor's office, and because Coffield lacked authority to grant immunity. We disagree.

The district court stated that it found no case holding that the detective-prosecutor relationship is to be viewed in the same light as the prosecutor-prosecutor relationship governed by Giglio." But in Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964), ⁵ we held that where material evidence which tends to exculpate the defendant is not disclosed, such failure is not neutralized because it was in the hands of the police rather than the prosecutor.

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.

Id. at 846 (footnote omitted).

Alternatively, we may also rest decision on attribution of the promise to the prosecutor's office. Coffield informed Lyle of the promise. Lyle, while stating he did not remember being told of the promise and recounting his subjective determination that, in any case, he was not foreclosed from prosecuting Hargrove, did not deny it. ⁶ If, as in Giglio, knowledge is imputed from one member of the prosecutor's office to another where there was no actual communication, we believe a fortiori it must be attributed to a member of that office who had been told of the promise.

Similarly, we believe that Giglio is applicable despite Coffield's lack of authority to bind the government to any agreement and the tentativeness of the promise. In Giglio, according to the affidavit of one member of the prosecutor's office, the cooperating witness was told "that if he did testify he would be obliged to rely on the 'good judgment and conscience of the Government' as to whether he would be prosecuted." Id. 405 U.S. at 153, 92 S.Ct. at 765 (footnote omitted). Furthermore, the district court in Giglio had found that, however definite the first promise had been, the prosecutor who made it was not authorized to do so. The Supreme Court held that neither fact was fatal to defendant's claim. Instead, the Court focused upon the fact that a no-prosecution promise had in fact been made, and that both the witness, in his testimony, and the prosecutor, in summation, had stated otherwise. The Court held that, since the government's case depended almost entirely on this witness' testimony, his "credibility as a witness was . . . 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." Id. at 155, 92 S.Ct. at 766 (emphasis added).

Finally, we note that rather than weakening the significance for credibility purposes of an agreement of favorable treatment, tentativeness may increase its relevancy. This is because a promise to recommend leniency (without assurance of it) may be interpreted by the promisee as contingent upon the quality of the evidence produced the more uncertain the agreement, the greater the incentive to make the testimony pleasing to the promisor.

III.

As the district court correctly noted, finding Giglio applicable to this case does not determine whether a new trial is required. However, we may put to one side one of the two factors which he considered in determining a new trial unnecessary defense counsel's "searing attack against Hargrove's testimony." No matter how good defense counsel's argument may have been, it was apparent to the jury that it rested upon conjecture a conjecture which the prosecutor disputed.

The controlling issue, and one which we find difficult, is the materiality of the evidence withheld. Under Giglio, "(a) new trial is required if 'the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury . . . .' " Id. at...