Carey v. Duckworth

• Decision Date: 29 March 1984
• Docket Number: No. 83-1024,83-1024
• Citation: 738 F.2d 875
• Parties: Wilbur CAREY, Petitioner-Appellant, v. Jack Raymond DUCKWORTH, and Indiana Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 875

738 F.2d 875

Wilbur CAREY, Petitioner-Appellant, v. Jack Raymond DUCKWORTH, and Indiana Attorney General,

Respondents-Appellees.

No. 83-1024.

United States Court of Appeals, Seventh Circuit.

Submitted March 29, 1984. ^*

Decided July 9, 1984.

Wilbur Carey, pro se.

David A. Nowak, Deputy Atty. Gen., Indianapolis, Ind., for respondents-appellees.

Before PELL, WOOD and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Pro-se petitioner-appellant Wilbur Carey was convicted of two counts of dealing in a controlled substance, heroin, and was sentenced to a term of 20 years. The Indiana Supreme Court unanimously affirmed the conviction. Carey v. State, 416 N.E.2d 1252 (Ind.1981). Having exhausted his state remedies, the petitioner filed a federal habeas petition, arguing that his due process rights were violated by prosecutorial misconduct. ¹ We affirm the dismissal of the habeas petition.

The facts are fully set forth in the state court and district court opinions. Suffice it to say that the Indianapolis Police Department (IPD) and the Federal Drug Enforcement Administration (DEA) were jointly engaged in an extensive investigation of drug trafficking in Indianapolis. Apparently both agencies suspected that petitioner Carey was heavily involved, and they arranged a "controlled buy" in order to test this suspicion. An informant named Stacy Shields placed a telephone call to Carey, and the two agreed to meet in a shopping center parking lot at which time Shields would purchase heroin from Carey. Two IPD officers and one DEA agent were present in the hotel room when Shields placed the telephone call, and one officer monitored and recorded the conversation. After the call, and before the controlled buy, Shields was strip-searched and his car was searched. He was then given the money for the buy, and he drove off to the parking lot. Police and federal agents kept him under surveillance. The drug transaction was videotaped, and the conversation between Carey and Shields was monitored by means of a small transmitter carried in Shields' pocket. After the transaction, Shields, still under surveillance, returned to the hotel where the officers took the newly-purchased heroin from him, and again strip-searched him and searched his car. The same scenario was repeated on a second occasion (hence the two counts to the indictment).

At trial, the DEA agents and officers testified as to what they heard and observed during the transactions between Shields and Carey, and the tape recordings of the phone conversations were played for the jury. (The videotape turned out to be unusable.) In view of this evidence, Shields' corroborating testimony would seem at best cumulative. The petitioner nevertheless argues that Shields' testimony was crucial, and that prosecutorial misconduct prevented the jury from adequately assessing Shields' (lack of) credibility. The petitioner initially argues that the prosecution failed to inform the defense or the jury that Shields served as an informant only in exchange for a deal with the DEA. The failure to disclose this potentially exculpatory information is alleged to violate Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Second, the petitioner argues that the prosecutor knowingly allowed Shields to perjure himself on the stand.

Brady v. Maryland, as clarified by United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), holds that the prosecution has a duty to disclose material exculpatory evidence, and that reversible error has occurred if the prosecution has failed to disclose such "material" evidence. "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." Agurs, 427 U.S. at 109-10, 96 S.Ct. at 2400-01. "Material" evidence is that which "creates a reasonable doubt that did not otherwise exist." Id. at 112, 96 S.Ct. at 2401. The significance of the omission must be evaluated in the context of the entire record.

Thus, in evaluating petitioner Carey's claim, we must consider whether the prosecutor had a duty to disclose the deal between Shields and the DEA, and whether the disclosure of this information would have created a reasonable doubt that would not otherwise exist in the minds of the jurors. We conclude that under the materiality standard of Agurs, the omitted information was not material. According to testimony given outside the presence of the jury, Shields (who had no previous drug-related convictions) had arranged for the sale of heroin to someone who turned out to be an undercover DEA agent, one "Baby" Hayes. When the identity of the purchaser was revealed to Shields by other agents, he was told that in exchange for his services as an informant, the agents would "put in a good word for him" with the U.S. Attorney. Apparently nothing more definite was promised. Although the terms of this "deal" were never explained to the jury in so many words, the jury was adequately informed that Shields was heavily involved in drug trafficking and that he was induced to testify because the DEA agents had a "hammer" on him; he had previously arranged for the sale of heroin to an undercover DEA agent but had not yet been charged. As one agent testified, the ideal informant is one who is heavily involved but has no prior convictions; he can be easily "flipped" by implicitly or explicitly holding the threat of prosecution over his head. It was explained to the jury (in case they had not figured it out) that Shields was strip-searched before and after the controlled buys because of the possibility that as a known drug dealer, he might introduce his own merchandise into the transaction. Testimony also showed that Shields received money for minor living expenses from the DEA. In short, Shields was not exactly presented to the jury as a model citizen. Additional information about his deal could not have undermined Shields' credibility enough to create a reasonable doubt about Carey's guilt.

In view of our conclusion about the immateriality of this omitted information, we need not decide whether the prosecutor was under a duty to disclose the information. The question is an interesting one, because it is clear that the prosecutor was totally unaware of the deal until it was disclosed during testimony on the second day of trial. ² (At that point a hearing was held outside the presence of the jury, and the terms detailed above were revealed.) The prosecutor had apparently taken Shields at his word when he told her that he had never sold heroin to anyone (he didn't consider arranging a deal to be equivalent to selling). The DEA agent explained that he hadn't mentioned the deal to the...