Castleberry v. Crisp

• Citation: 414 F. Supp. 945
• Decision Date: 06 May 1976
• Docket Number: No. 75-C-422-C.,75-C-422-C.
• Parties: Kenneth Ray CASTLEBERRY, Petitioner, v. Richard CRISP, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma, Respondent.
• Court: U.S. District Court — Northern District of Oklahoma

414 F. Supp. 945

Kenneth Ray CASTLEBERRY, Petitioner, v. Richard CRISP, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma, Respondent.

No. 75-C-422-C.

United States District Court, N. D. Oklahoma.

May 6, 1976.

Paul D. Brunton and Ronald H. Mook, Tulsa, Okl., for petitioner.

Kay Karen Kennedy, Asst. State Atty. Gen., Oklahoma City, Okl., F. L. Dunn, III, Tulsa, Okl., for respondent.

ORDER

COOK, District Judge.

The Court has before it for consideration a petition for Writ of Habeas Corpus filed pursuant to Title 28 U.S.C. § 2254 by Kenneth Ray Castleberry. Petitioner attacks the validity of the judgment and sentence rendered by the District Court of Tulsa County, State of Oklahoma, in Case Nos. CRF-72-359, CRF-72-360 and CRF-72-361. After a trial by jury, petitioner was found guilty as to each charge of the crime of murder and his punishment was fixed at confinement in the state penitentiary for life as to each charge. The judgment and sentence were affirmed on direct appeal, Castleberry v. State, 522 P.2d 257 (Okl.Cr. 1974). Petitioner subsequently appealed to the United States Supreme Court which denied certiorari. Castleberry v. State, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974).

Petitioner demands his release from custody and as grounds therefor claims that he is being deprived of his liberty in violation of his rights under the Constitution of the United States of America. In particular, petitioner claims:

"1. The State Court's admission of certain incriminatory statements made by the petitioner were procured in violation of his Fifth Amendment privilege against self-incrimination and thereby denied petitioner due process of law under the Fifth and Fourteenth Amendments to the United States Constitution.

"2. Petitioner was denied due process of law under the Fifth and Fourteenth Amendments to the United States Constitution by the prosecution's failure to stipulate to the admissibility of favorable polygraph results for the limited purpose of showing that incriminatory statements made by petitioner were procured in violation of his Fifth Amendment privilege against self-incrimination.

"3. The prosecution's failure to produce evidence favorable to the accused violated petitioner's right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution."

On March 19, 1976, oral arguments were presented in regard to petitioner's claims. At that time Mr. Ron Mook, on behalf of petitioner, stated that he considered "the question of polygraph at this time moot," and presented no arguments going to this issue. Based upon the Court's having determined that petitioner's second claim in regard to the granting of Habeas Corpus relief based upon admissibility of polygraph results is without merit, this contention will not be given further consideration.

Petitioner alleges in his third claim, as stated, that the prosecution's failure to produce evidence favorable to the accused violated petitioner's right to due process of law. Based upon a thorough examination of the briefs filed herein, a reading of the transcript of trial and hearing on motion for new trial and the law applicable to the production of exculpatory evidence, the Court has determined that petitioner's contention in this regard merits further consideration.

Petitioner asserts that the prosecution failed to provide the defense exculpatory information indicating someone other than the defendant may have committed the crime. From an examination of the entire transcript it would appear that prior to trial the police had a statement, probably written but unsigned, by one Michael Roger Lee Cozart. According to Cozart's testimony at the Motion for New Trial, prior to trial he told the police that on the evening of the day the bodies were discovered, February 16, 1972, he saw one Jackie Dean Tandy in front of Tandy's residence, which was a few blocks from the murder scene, crying and shaking. In addition, Cozart stated that Tandy had blood on his clothing. According to the affidavit of the police officer who interviewed Cozart, attached to the Supplemental Response filed herein, Cozart did not make any statement in regard to seeing blood. Since Cozart indicated under oath that he made such a statement, this question would appear to require an evidentiary hearing.

In addition, evidence was presented at the Motion for New Trial which indicates that one Larry Lowther telephoned the police in regard to his suspicions that Tandy had committed the murders. Lowther was with Cozart on the evening of February 16th, 1972, and testified he also saw a brown spot on Tandy's pants that looked like blood and that Tandy had a knife in his boot. Lowther further stated that Tandy was shaking badly and acting suspiciously. The police not only apparently had a record of Lowther's phone call, but Lowther accompanied Cozart to the police station. The record does not reflect the content of any discussions Lowther may have had with the police.

In addition one Joyce Anglen, who lived next door to Tandy, observed Tandy acting strangely and shaking, and instructed her husband to call the police and tell them she thought Tandy had committed the crime. Her husband did call the police and apparently informed them of same. Further, Mrs. Anglen talked to the police the next day in her back yard concerning her suspicions. Presumably the police made some record of this conversation. Mrs. Anglen further stated that "as a result of the conversation had with" the police she helped Tandy's wife look for a knife that was apparently missing from the Tandy home and never found. The police, therefore, likely have some reports in regard to the missing knife. (Evidence presented at trial indicated that the murder weapon was a knife. No knife was produced at trial.) The evening of February 16, 1972 the police arrested Tandy presumably based upon probable cause to believe he committed the murders. It appears from the testimony at the Motion for New Trial that the police also had a written statement by Tandy. He was released shortly thereafter.

At the hearing on the motion for new trial, the defense called two additional witnesses. At the time of trial the police did not know of these witnesses, but had the defense been given the initial information in regard to Tandy, it may be presumed they could have located these additional witnesses for trial, since they were able to do so for the hearing on the motion for new trial. Jimmy Lee Mize testified he saw Tandy in January or February at Tandy's residence a few blocks from the murder scene and that Tandy had blood on his clothes from the knees down and on his boots. Mize was not allowed to testify in regard to a statement allegedly made by Tandy because Oklahoma did not recognize statements against penal interest as an exception to the hearsay rule. An offer of proof was made, however, to the effect that Tandy told Mize's father that he had been at the Castleberry house to "hit" it and got in some trouble, and Tandy said he needed to get out of town. The father of Jimmy Lee Mize, James Martin Mize, testified that Tandy appeared the "day before the news broke on Castleberry" and that Tandy had blood on him and he said he was in trouble and needed to get out of town.

None of the above information was made available to the defense at time of trial.

The United States Supreme Court has made it clear that the prosecution's failure to disclose evidence materially favorable to the defense raises a due process issue of constitutional dimensions, properly the subject of a petition for habeas corpus. Simos v. Gray, 356 F.Supp. 265 (E.D.Wis. 1973). In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Court declared:

"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

Clearly the rationale of Brady focuses not on misconduct of the prosecutor but on harm to the defendant. As noted by the court in Levin v. Clark, 133 U.S.App.D.C. 6, 408 F.2d 1209 (1967), the State's facilities for discovering evidence are usually far superior to the defendant's.

"This imbalance is a weakness in our adversary system which increases the possibility of erroneous convictions. When the Government or State aggravates the imbalance by failing to reveal evidence which would be helpful to the defendant the constitution has been violated. The concern is not that law enforcers are breaking the law but that innocent people may be convicted." Levin v. Clark, supra.

There is, of course, no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1971). Brady does not sanction a "fishing expedition." United States v. Burnett, D.C.Super.Ct., Cr. No. 73588-73, April 23, 1974. It does not require "the prosecution to prepare the case for the defense." United States v. Gleason, 265 F.Supp. 880 (S.D.N.Y.1967). Nor can the accused search the prosecutor's files for anything potentially favorable. United States v. Washington, 150 U.S.App.D.C. 68, 463 F.2d 904 (1972).

A prerequisite to relief for the nondisclosure of required information is that the defense did not have independent knowledge of and access to the evidence in question. Smith v. United States, 375 F.Supp. 1244 (E.D.Va.1974); Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1958); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965). An examination of the record in the case at bar indicates that although the names of Mike Cozart, Larry Lowther and Joyce Anglen's husband were endorsed by the State on the information, Mike Cozart refused to talk with defense counsel, the Anglens had moved and left...