Burkhalter v. State
| Decision Date | 21 February 1973 |
| Docket Number | No. 44675,44675 |
| Citation | 493 S.W.2d 214 |
| Parties | Archie BURKHALTER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Warren Burnett, Odessa, for appellant.
Carol S. Vance, Dist. Atty., Joe S. Moss, James C. Brough and James Moseley, Asst. Dist. Attys., Jimmy R. James Sp. Prosecutor, Houston, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
The offense is accomplice to murder with malice; the punishment, life.
Appellant does not challenge the sufficiency of the evidence and, therefore, a detailed recitation of the facts is unnecessary. It sufficies to say that appellant, a physician, was indicted as an accomplice to murder with malice in the death of Robert J. Pendleton, a fellow physician. Del Monte Whitehurst, a key prosecution witness, and two others were indicted as principals in the same offense. A companion case is Tucker v. State, Tex.Cr.App., 461 S.W.2d 630.
The primary question in this case, raised by appellant's first two contentions, is whether the trial court erred in refusing to let the jury hear evidence that the witness Whitehurst's Lawyer had an understanding with the State that if Whitehurst testified without claiming immunity he would not be prosecuted. A special prosecutor admitted that it was the State's plan to procure witness Whitehurst's release from all charges when appellant's trial was over. Further, it was part of the plan that the State would try Whitehurst if the defense were to request immunity either in open court or otherwise. Thus, the testimony was that the arrangements were to be communicated to appellant's counsel, but not directly to appellant himself.
Appellant's strongest contention is based upon the recent opinion of the United States Supreme Court in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In that case, the witness Taliento testified that:
'Nobody told me I wouldn't be prosecuted . . . I believe I still could be prosecuted.'
In summation, the government attorney reiterated that no promises had been made to Taliento.
While the case was on appeal, the petitioner filed a motion for new trial based on newly discovered evidence and attached an affidavit from one of the prosecutors who was not directly involved in the actual trial stating that he had promised Taliento that all prosecutions against him would be dismissed if he testified against an alleged co-conspirator.
The Court ordered a new trial holding that since the government depended almost entirely on Taliento's testimony, his credibility as witness was important and the jury was entitled to know about any agreement concerning immunity.
In the case at bar, we have the testimony of the Special Prosecutor that he told Whitehurst's lawyers that if Whitehurst testified for the State without claiming immunity the prosecutions against him would be dismissed, but warned such lawyers not to convey that information to Whitehurst personally.
Attorney Farmer, Whitehurst's lawyer, testified as follows:
'But the way we stated it to him (Whitehurst) was that if he testified it could help him but that we would not promise him nor could anyone else promise him anything in exchange for his testimony.'
Further,
Quoting Farmer's testimony further:
'Q You did not promise him any particular results, of course.
'A No, sir.'
Arguably, the Giglio opinion has no application in the present case, since there is no showing here that the prosecutor ever spoke directly with or conveyed to Whitehurst a Direct promise that he would not be prosecuted if he testified for the State.
We have closely examined the Giglio decision and we cannot agree that the case turned on this point. Nowhere does the U.S. Supreme Court make such a distinction and we certainly will not imply one. We quote from Giglio:
(emphasis supplied)
The court did not say 'any agreement between the witness and the prosecutor' or 'in cases where the agreement is directly conveyed to the witness.' Such language unduly restricts the very reasoning behind Giglio: that is, that the jury should have the opportunity to decide the witness's credibility for themselves.
We recognize the argument that while the witness's state of mind while testifying and his expectations were not mentioned in Giglio, the court there was faced with a different factual situation. Admittedly, that court was not faced with and did not address a situation where the witness granted immunity was completely ignorant of any agreement as to future prosecution. In our opinion, neither is it clear that this Court is presented with such a case.
The record reveals the following colloquy, heard during the motion for a new trial:
(Testimony of Whitehurst's attorney)
'Q If he testified it could help him?
'A If he testified it could help him.
'Q You did not promise him any particular results of course?
'A No, sir.
'Q But you did tell him that if he testified that it could help him?
'A If he wanted to testify, it could possibly help him.
'Q In other words, it would be fair to say that he was allowed to know that if he testified that it could be of benefit to him?
'A It could be.
'Q He was made to know that?
Thus, the record indicates that both Whitehurst and his attorney admitted that, although no direct promise of immunity from prosecution was ever conveyed to Whitehurst, he was told that his testimony 'could help his case.' We find it unrealistic to draw a line between an outright promise not to prosecute and a very real inference not to prosecute. 1 The suggestions and innuendos in the present case bring appellant within the rule announced in Giglio.
Further, evidence that witness Whitehurst was not completely in the dark is revealed by the record, in reference to the visit by Phil Greene. Mr. Greene, an attorney, allegedly called on Whitehurst during the course of the trial and urged him to seek immunity before testifying. With Whitehurst testifying, the record reflects:
'Q You deny that you are expecting that?
'Q So now your testimony before the jury is that you were offered that you could go absolutely scot-free, but that you turned it down?
'A Yes, sir.
'Q You don't want to be scot-free, right?
'A Well, I didn't want to look at it the way he was trying to do it.'
Surely, it must have struck the trial judge as unusual, to say the least, that a co-indictee in a murder case would 'run off' an attorney who suggested that he should go into open court and demand immunity before testifying. One reasonable inference to be drawn from Whitehurst's actions is that he knew of the State's plan not to prosecute, but also knew not to mention it for fear of jeopardizing the entire scheme. Whether or not this is true is not for us to decide. The point is that The jury should have been given the opportunity to judge Whitehurst's credibility for themselves. The trial court's refusal to permit disclosure of the State's plan not to prosecute Whitehurst deprived the jury of that function.
Further, we find that such a deprivation amounted to a denial of due process. It is axiomatic that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction. This rule does not cease to apply merely because the false testimony goes only to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). As recognized in Napue, the jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence.
We fully appreciate the State's position that there was no false evidence here, since Whitehurst did not Know that he would not be prosecuted. Even if we assume this ignorance, arguendo, we find that the prosecutor's silence as to the plan not to prosecute conveyed an impression to the jury which the State knew to be false and one which should have been corrected. On cross-examination, Whitehurst gave the following testimony:
'Q And you fully expect that when this case is over, not only will you be out of this case but all other charges against you?
'A No, sir.'
Appellant was not accorded due process of law when he was denied the opportunity to refute the inevitable impression that such testimony had on the jurors; that is, that Whitehurst would obtain no reward for testifying. Defense counsel should have been permitted to place the parties in proper perspective and develop further the interests involved. 2 cf. Alcorta v. Texas, 355 U.S. 32, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957).
The State answers that if there was...
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