Campbell v. Fair

• Decision Date: 06 October 1987
• Docket Number: No. 87-1311,87-1311
• Citation: 838 F.2d 1
• Parties: John CAMPBELL, Jr., et al., Petitioners, Appellants, v. Michael V. FAIR, Commissioner of Correction, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

838 F.2d 1

John CAMPBELL, Jr., et al., Petitioners, Appellants, v. Michael V. FAIR, Commissioner of Correction, Respondent, Appellee.

No. 87-1311

United States Court of Appeals, First Circuit.

Heard Oct. 6, 1987.

Decided Jan. 26, 1988.

Anthony M. Cardinale, with whom Robert L. Sheketoff and Zalkind, Sheketoff, Homan, Rodriguez & Lunt, Boston, Mass., were on brief, for petitioners.

William A. Gottlieb, Asst. Atty. Gen., Crim. Bureau, with whom James M. Shannon, Atty. Gen., and A. John Pappalardo, Deputy Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief for respondent.

Before COFFIN, Circuit Judge, BROWN, ^* Senior Circuit Judge, and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

We review here the district court's denial of Campbell, Keigney and Doherty's petitions for writs of habeas corpus. They argue before us that their constitutional rights were violated because the prosecution in state courts knowingly relied on perjured testimony and failed to disclose impeaching testimony. Doherty also claims the evidence was insufficient to sustain his conviction.

Campbell, Keigney and Doherty, all inmates of MCI-Walpole, were indicted on February 3, 1977, in Norfolk County, Massachusetts, for the murder of Robert Perrotta, who also was an inmate at MCI-Walpole at that time. They were tried, and a jury returned verdicts of first degree murder. The convictions were affirmed by the Supreme Judicial Court (SJC), in Commonwealth v. Campbell, 378 Mass. 680, 393 N.E.2d 820 (1979).

The defendants filed a motion for new trial in 1984, which was denied after an evidentiary hearing. The Honorable Justice Wilkins, in his capacity as a single justice of the SJC, denied their motion for leave to appeal the denial of new trial. Defendants subsequently filed petitions for writs of habeas corpus in the United States District Court. Judge Mazzone of the District of Massachusetts issued a Memorandum and Order on March 5, 1987, dismissing their petitions. The case now comes before us on appeal.

Appellants' two legal arguments concern distinct sets of facts, which will be explored more fully in the analysis of each argument: the first issue makes relevant the facts concerning the impeachability of the prosecution's star witness, while the second requires perusal of the evidence establishing appellant Doherty's role in the murder.

I

We will examine first whether the trial was constitutionally tainted by a lack of opportunity to explore the impeachability of the principal eyewitness against the petitioners. Thomas Carden was the only witness who could connect the petitioners with the murder. He had been the brother-in-law of the victim and was his close friend. He was also an inmate at Walpole at the time of the murder, and the first inmate in the history of that institution to testify for the prosecution in an inmate murder case.

His impeachability stems from the favorable resolution of some legal matters affecting him. At the time he testified, he was serving a twenty- to thirty-year sentence. The prosecution to some extent held out that lengthy sentence as insurance against any expectation of favorable treatment Carden may have had in exchange for his testimony. Unbeknownst to any of the parties, however, Carden's attorney had recently filed a motion to revise and revoke that sentence. Thirty days after trial, the prosecutor testified on Carden's behalf in that motion, with the result that his sentence was reduced to eleven years. This reduction made Carden eligible for parole at the end of a federal sentence he was serving concurrently, rather than several years later.

Another conviction is also relevant. Between the time when he began to cooperate with the prosecution and the time of trial, Carden pleaded guilty to bank robbery. The prosecutor in that case made no sentencing recommendation, and the judge imposed a sentence that did not interfere with Carden's federal parole eligibility date. In a confused passage of the transcript Carden arguably states that that case is still pending. That same passage is subject to the interpretation that the witness was referring to the motion to revise and revoke mentioned above, or to a different case altogether. Although petitioners now argue that Carden lied and the prosecutor failed to correct him, neither the prosecutor nor defense counsel found anything odd in Carden's answers, and no attempt was made to correct or clarify any answers.

The final, crucial fact to note on this point is that in an evidentiary hearing on a motion for new trial, and after considering the testimony of all relevant persons, the trial court explicitly found that the prosecutor had made no promises to Carden, and had no knowledge of the motion to revise and revoke when he conducted petitioners' trial.

In their argument, however, petitioners repeatedly claim that the prosecutor "failed to disclose promises to a key witness," and then bring to our attention the Supreme Court's disapproval of such actions. See, e.g., Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). At the same time, they fail to note the strictures imposed on us by 28 U.S.C. Sec. 2254 when reviewing a state court's factual findings. We must presume these findings to be correct, with the burden on the applicant to establish the contrary by convincing evidence, unless one of the eight exceptions listed in Sec. 2254(d) applies. See Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982).

The only exception that is relevant here is the one set forth in subsection (d)(8): factual findings are not to be disturbed

[u]nless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record....

The plea to find an undisclosed promise was denied by the trial judge, by the SJC, by a single justice of the SJC, and by the Federal district court. The record demonstrates that the trial court's finding was based on, among other things, the testimony of the prosecutor and Carden, whose credibility that court was in an eminently better position to evaluate. There is no doubt that the finding is "fairly supported by the record."

Whether the prosecutor knowingly relied on perjured testimony in failing to correct Carden's alleged statement that there was a pending case, when in fact he (the prosecutor) believed there was none, presents a slightly different question. The Supreme Court has recognized "the well-established rule that 'a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.' " United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3382, 87 L.Ed.2d 481 (1985) (quoting United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976)).

Even disregarding serious questions concerning the knowledge of the prosecutor, and whether this testimony was actually perjured, we need not reverse, since we find that the "false" testimony could not have affected the judgment of the jury. The appellants repeatedly state that pending charges could not be used to impeach Carden because of his twenty- to thirty-year sentence. If that is the case, then the jury would have even less reason to doubt Carden on the basis of a case that had already been settled. The alleged perjury does not establish a crucial element of the case, but merely presents some evidence that Carden may have had some reason to expect help from the prosecutor in the future, without, however, a promise in that respect. We do not think the jury would have been significantly affected by this particular kernel of information.

The more seriously impeaching news is the pendency of the motion to revise and revoke. Carden knew that such a motion had been filed on his behalf, and he may well have expected some cooperation from a grateful prosecutor, especially since Carden had already received some assistance. Petitioners urge us to impute knowledge of this motion to the prosecutor, in order to apply the more punitive standard for prosecutorial failure to disclose exculpating evidence, rather than the stricter standard for newly discovered evidence. Unfortunately petitioners provide us with no reason to impute this knowledge to Prescott, the prosecutor, other than the mere fact that Carden may have expected Prescott's help on the motion.

In fact, there is good reason not to charge Prescott with this knowledge. Appellants cannot claim that Prescott actualy knew of the motion since the state court expressly, and reasonably, found no actual knowledge. We hesitate to impose on the prosecution the burden of discovering any action taken by any one of its witnesses that may bring into question the disinterested quality of that witness' testimony.

Since the pendency of the motion is simply newly discovered evidence, therefore, petitioners must shoulder a heavy burden if they wish to establish that the Constitution demands they receive a new trial. We have previously stated that "[i]t may be assumed that a compelling claim for relief might be presented when newly available evidence conclusively shows that a vital mistake had been made." Grace v. Butterworth, 586 F.2d 878, 880 (1st Cir.1978). We review, of course, only for errors of constitutional magnitude. Subilosky v. Callahan, 689 F.2d 7,...