Boyle v. Johnson

• Decision Date: 16 August 1996
• Docket Number: No. 95-10802,95-10802
• Citation: 93 F.3d 180
• Parties: Herbert BOYLE, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 180

93 F.3d 180

Herbert BOYLE, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 95-10802.

United States Court of Appeals Fifth Circuit.

Aug. 16, 1996.

Judith Rochlin, Los Angeles, CA, Cristy Jo McElroy, Canyon, TX, for Petitioner-Appellant.

William Charles Zapalac, Asst. Atty. Gen., Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee.

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

Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Benjamin Herbert Boyle, sentenced to death for the murder of Gail Lenore Smith, appeals the district court's denial of his petition for writ of habeas corpus. Finding no reversible error, we affirm.

I

Gail Lenore Smith drove with her step-brother and sister-in-law to a rest stop outside Fort Worth, Texas. Smith planned to obtain a ride from a truck driver in order to visit her mother in Amarillo. She asked her relatives to write down the license number of the truck she boarded, in case anything happened. A few minutes after arriving at the rest stop, Smith's relatives observed her approach a male truck driver, converse with him, and then board his cherry-red Peterbilt tractor-trailer.

The next day, a passing truck driver discovered Smith's naked body, bound with duct tape, concealed in a brushy area fourteen miles north of Amarillo. Although Smith's relatives had failed to write down the truck's license number, they were able to give authorities a description of the driver and the truck, including the inscription "JEWETT SCOTT, Truck Line Inc., Magnum Oklahoma" which was written on the side of the truck. Through this information, the authorities were able to trace the tractor-trailer to Boyle, and after conferring with Jewett Scott Truck Lines in Oklahoma, learned that Boyle's ultimate destination was Diboll, Texas. Boyle was arrested in Diboll, and gave investigators written consent to search his truck. ¹ Inside the truck, officers found several of Smith's possessions. Officers also found hairs from Smith's head and pubic area, some of which had been forcibly removed. In addition, blood stains in the sleeper portion of the truck were consistent with Smith's blood type. Subsequently, Boyle's fingerprints were found on the strips of duct tape used to bind Smith, and fibers taken from Smith's body matched the carpet in Boyle's truck. Medical evidence showed that Smith had been orally and anally raped, beaten with a blunt instrument, and strangled to death. Boyle continued to maintain that he had dropped Smith off at a truck stop unharmed.

Boyle was indicted for capital murder during the course of committing or attempting to commit aggravated sexual assault, and capital murder during the course of kidnaping. Boyle pleaded not guilty, and was tried before a jury. The evidence at trial consisted of the physical evidence linking Boyle to the murder, medical evidence indicating the sexual nature of the murder, and other evidence tending to show Boyle's obsession with sex. The jury found Boyle guilty on all counts and, after hearing evidence relevant to punishment, returned affirmative answers to the special issues found in article 37.071 of the Texas Code of Criminal Procedure. As required by law, the trial court sentenced Boyle to death.

On automatic appeal, the Texas Court of Criminal Appeals reversed Boyle's conviction on the grounds that his arrest had been unlawful, and thus the evidence obtained pursuant to that arrest had been admitted in violation of Boyle's constitutional rights. Boyle v. State, 820 S.W.2d 122, 137 (Tex.Crim.App.1989). The state moved for rehearing en banc, and the Court of Criminal Appeals reversed itself, reinstating Boyle's conviction and sentence on the grounds that Jewett Scott's consent to search the truck was constitutionally adequate. Id. at 143. The Supreme Court denied Boyle's petition for writ of certiorari. Boyle then pursued state habeas relief. A hearing was held, and the trial court entered its findings of facts and conclusions of law denying Boyle's habeas petition. The Court of Criminal Appeals affirmed the trial court, holding that the lower court's findings and conclusions were supported by the record. Boyle then filed a petition for federal habeas relief in the Northern District of Texas. The district court denied his petition, but granted a certificate of probable cause to appeal. Boyle now appeals the district court's order denying his habeas petition.

II

Boyle argues that the trial court erred in admitting evidence of his sexual habits and drawings. Boyle maintains that admission of this evidence violated his First Amendment right to not have evidence of his associations and expressions admitted against him at sentencing. While there is no "per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment," the government may not admit such evidence indiscriminately. Dawson v. Delaware, 503 U.S. 159, 165, 112 S.Ct. 1093, 1097, 117 L.Ed.2d 309 (1992). The Supreme Court has explicitly held that in order for such evidence to be admissible, it must be sufficiently related to the issues involved. See id. (disallowing admission of evidence indicating that defendant belonged to racist "Aryan Brotherhood" gang in prison where there was no racial component to the crime committed). ² Thus, we must determine if the evidence of Boyle's sexual relations and expressions was sufficiently related to the issues at sentencing. After carefully reviewing the record in this case, we hold that the evidence was sufficiently related to the crime committed to allow its admission during the capital sentencing phase of Boyle's trial. ³

At sentencing, the trial court first admitted all the evidence that had been admitted at the guilt-innocence phase, including three letters and brief testimony concerning Boyle's preoccupation with sex. ⁴ The state then put on additional testimony concerning Boyle's sexual habits and evidence concerning his sexual drawings. ⁵ The state argues that the evidence was sufficiently related to the second special issue, the issue of future dangerousness, to survive a Dawson challenge. ⁶ According to the state, the evidence showed that Boyle was obsessed with sex, and that he associated sex with violence, facts which ultimately resulted in a sexually motivated murder. After carefully reviewing the record, we believe the state satisfied the requirements of Dawson. As the Supreme Court noted in Dawson, "In many cases ... associational evidence might serve a legitimate purpose in showing that a defendant represents a future danger to society." Dawson, 503 U.S. at 166, 112 S.Ct. at 1098. Dawson simply requires that the evidence be relevant to an issue at sentencing. ⁷ Id. Here the state put on evidence that Boyle was obsessed with sex, and that his sexual expression had a violent component. Unlike the situation in Dawson, where there was no connection between the evidence presented and the crime committed, Boyle was convicted for a murder which had a sexual component. See O'Neal v. Delo, 44 F.3d 655, 661 (8th Cir.) (finding evidence that defendant was a member of a racist group relevant and therefore admissible under Dawson where "racial animus as a motive for [the] murder was an issue in the trial"), cert. denied, --- U.S. ----, 116 S.Ct. 129, 133 L.Ed.2d 78 (1995). Evidence of Boyle's sexual obsession was thus relevant to the issue of Boyle's future dangerousness; it tended to show that Boyle "would constitute a continuing threat to society." TEX.CODE CRIM.PROC. art. 37.071(b)(2) (Vernon 1981). ⁸ Accordingly, we hold that the district court did not err in finding a sufficient nexus under Dawson to allow the state to present evidence of Boyle's sexual habits and sexual drawings at sentencing. ⁹

III

Boyle next contends that he was denied a fair trial because of the state's presentation of false and misleading testimony from a clinical pathologist, Dr. Ralph Erdmann. Boyle contends that Dr. Erdmann's gross misconduct in other cases indicates that the testimony Dr. Erdmann gave was perjured. Boyle also maintains that the prosecutor knew that Erdmann was unreliable in his handling of evidence and in his testimony from the stand, but failed to notify the defense in violation of the dictates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In order to establish a due process violation based on the government's use of false or misleading testimony, the defendant must show (1) that the witness's testimony was actually false, (2) that the testimony was material, and (3) that the prosecution had knowledge that the witness's testimony was false. Westley v. Johnson, 83 F.3d 714, 726 (5th Cir.1996); East v. Scott, 55 F.3d 996, 1005 (5th Cir.1995). We will reverse a conviction obtained through the use of tainted testimony. United States v. Blackburn, 9 F.3d 353, 357 (5th Cir.1993), cert. denied, 513 U.S. 830, 115 S.Ct. 102, 130 L.Ed.2d 51 (1994). In addition, the state must also disclose information that would serve to impeach a witness. United States v. Martinez-Mercado, 888 F.2d 1484, 1488 (5th Cir.1989). Failure to disclose such evidence will result in reversal if it is "reasonably probable" that disclosure of such evidence would have made a difference in the result at trial. Kyles v. Whitley, 514 U.S. 419, ----, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995).

Boyle's attack on Dr. Erdmann's testimony is based on the testimony of one expert at trial, and two experts who testified at Boyle's habeas hearing. These experts disagreed with Erdmann's analysis and interpretation of the evidence presented in Boyle's case. ¹⁰ Boyle also points to the fact that Dr. Erdmann subsequently pleaded no...