Breest v. Perrin, Civ. No. 79-206-D.
| Decision Date | 01 November 1979 |
| Docket Number | Civ. No. 79-206-D. |
| Citation | 479 F. Supp. 495 |
| Parties | Robert BREEST v. Everett I. PERRIN, Jr., Warden, New Hampshire State Prison. |
| Court | U.S. District Court — District of New Hampshire |
Robert Breest, pro se.
Paul W. Hodes, Asst. Atty. Gen., Concord, N. H., for respondent.
In this petition for habeas corpus (28 U.S.C. § 2254), Robert Breest contends he has been deprived of due process by reason of alleged acts of prosecutorial misconduct. He also seeks an evidentiary hearing, perceiving that the testimony of certain witnesses is necessary to the proper adjudication of his contentions. The Court, however, has reviewed the extensive record presented, and concludes that such hearing is not required, and that the writ should not issue.
Petitioner was convicted of murder in March of 1973 after trial by jury in Merrimack County Superior Court, and his conviction was upheld on appeal. State v. Breest, 116 N.H. 734, 367 A.2d 1320 (1976).1 In October 1976, he moved for a new trial, and events arising from the consideration of that motion gave birth to the issues presented herein.2 His motion was denied after hearing, his exceptions thereto were overruled (State v. Breest, 118 N.H. 416, 387 A.2d 643 1978), and certiorari was denied on June 11, 1979. Breest v. New Hampshire, ___ U.S. ___, 99 S.Ct. 2864, 61 L.Ed.2d 300.
Two contentions are here advanced by the petitioner. His first claim is that the prosecution failed to disclose exculpatory material favorable to his defense in violation of a court order. The basis of this claim is that the prosecution failed to disclose that David Carita, a key witness at petitioner's trial, had been promised a new name and identity as an inducement to testify. It is further claimed that Carita committed perjury and that the prosecution knowingly allowed such perjury to stand without correction, and in fact emphasized it in the course of trial. Proper resolution of these contentions requires review of the salient portions of the record and the applicable law.
David Carita, called as a prosecution witness, testified that he met petitioner when they were fellow inmates in the Billerica, Massachusetts, County Jail (T.T. 754)3 and that petitioner confessed to him that he had murdered the victim, Susan Randall (T.T. 763). This testimony constituted the only direct evidence presented against the petitioner.4 In an obvious attempt to bolster the credibility of its witness, the prosecution concluded the direct examination with the following questions:
(T.T. p. 767.)
On cross examination defense counsel further probed Carita's reasons for testifying in the Breest trial. Carita explained under oath that at first he had not wanted to testify in New Hampshire because he had a "pretty good deal" in Massachusetts (T.T. p. 801). His change of heart came after talking with Assistant Attorney General Wingate, according to Carita.
(T.T. pp. 808-09.) Also on cross examination defense counsel elicited the fact that Carita had a history of testifying against criminals, including the chief enforcer of the Mafia, for which a conviction was returned (T.T. p. 775). As a result, many of the prisoners considered him a "rat", according to Carita. In constant fear of his life, Carita had gone so far as to volunteer to stay in "the hole", which is solitary confinement, at Billerica, for five months and seventeen days rather than mingle with the other prisoners in the "cage". Upon his own request Carita was transferred to Greenfield, Massachusetts, among other reasons because he was concerned about his safety, and it was thought that none of the other prisoners there would be familiar with Carita's activities (T.T. p. 804).
Following petitioner's trial, David Carita was given the new name and address of "Joseph C. Anthony, Hopkinton Road, Hopkinton, New Hampshire" (Tr. 15, 16).5 In early September 1975, he was shot and killed in an apparent attempt at robbery, and the report in the news media came to petitioner's attention. The hearing on the petitioner's motion, therefore, focused on his contention that the prosecution's failure to reveal this information was in derogation of his Fourteenth Amendment right to exculpatory information material to his defense; and his claim that he was likewise denied his Sixth Amendment right to fully cross examine the witness.
At hearing, defense counsel called Sheriff Ronald D. Daniels, Jr., who had been instrumental in arranging for Carita's move from Massachusetts to New Hampshire and in providing him with a new name and location. The Sheriff's testimony established that the Attorney General's Office had been directly responsible for providing Carita with a new identity (Tr. 31), but his response was ambiguous as to whether the granting of a new identity to prisoners constitutes standard procedure. In response to a question by Assistant Attorney General Michaud the Sheriff stated that standard procedure was followed "one hundred percent" in regard to witness Carita (Tr. 37), but then on redirect by defense counsel Holland the Sheriff agreed that "statistically, or arithmetically, it would be less likely to get a new name than more likely."6 (Tr. 38-39.) Upon questioning by the Court, it was also brought out at this hearing that the witness had not been promised anything "in the nature of a reduction of his sentence or not prosecuting him for other crimes that he might have been held for." (Tr. 41.)
Following hearing, the trial court made the following "Findings and Rulings on Motion for a New Trial": The State did not disclose to the defendant that it had promised the witness, as an inducement to elicit his testimony, that it would furnish him a new name after the trial; that the State did not violate the court order which did not specifically require a disclosure of promises made to witnesses although it did require disclosure of evidence favorable to the defendant; that "there is no reasonable likelihood that the introduction of evidence at the trial, relative to the State's promises to give the defendant a new name, could have affected the judgment of the jury as to Carita's credibility, or the judgment of the jury relative to the guilt or innocence of the defendant"; and that "considering Carita's testimony as a whole, it is found that he did not commit perjury in his testimony as to what promises or assurances the State had made to him relative to his safety." See "Findings and Rulings", State of New Hampshire v. Robert G. Breest, Merrimack Co. Superior Court, November 8, 1977, p. 5.
In oral argument before the Supreme Court of New Hampshire, the role of the prosecution in the solicitation of or suppression of perjury was explored by Judge Grimes. Assistant Attorney General Michaud downplayed the significance of the promise of a new identity to the witness, arguing that the new identity was given to Carita not as an inducement to testify, but rather to offset the danger of testifying (Tr. 27).7 Judge Grimes pressed the prosecuting attorney on this point:
(Tr. 33.)
Judge Grimes then questioned Mr. Michaud on the State's role during the original trial:
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