Chaney v. Brown, 83-1862

• Decision Date: 21 March 1984
• Docket Number: No. 83-1862,83-1862
• Citation: 730 F.2d 1334
• Parties: Larry Leon CHANEY, Petitioner-Appellant, v. John N. BROWN, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1334

730 F.2d 1334

Larry Leon CHANEY, Petitioner-Appellant, v. John N. BROWN, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma, Respondent-Appellee.

No. 83-1862.

United States Court of Appeals, Tenth Circuit.

March 21, 1984.

Opinion on Denial of Rehearing En Banc May 30, 1984.

Gordon G. Greiner of Holland & Hart, Denver, Colo. (Bruce W. Sattler of Holland & Hart, Denver, Colo., Allen M. Smallwood, Tulsa, Okl., John Charles Boger, NAACP Legal Defense and Educ. Fund, Inc., New York City, of counsel, were also on brief), for petitioner-appellant.

David W. Lee, Asst. Atty. Gen., Oklahoma City, Okl. (Michael C. Turpen, Atty. Gen. of Okl., Oklahoma City, Okl., was also on brief), for respondent-appellee.

Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

Petitioner Larry Leon Chaney was convicted by a jury of murder in the first degree and the jury recommended a death sentence which was imposed in the District Court of Tulsa County, Oklahoma. Chaney appeals the denial of his petition for a writ of habeas corpus by the United States District Court for the Northern District of Oklahoma, arguing that (1) the prosecutor wrongfully withheld exculpatory evidence that was material both as to guilt or innocence and to punishment; (2) the prosecutor's withholding of evidence that persons other than Chaney may have been involved deprived Chaney of the opportunity to persuade the jury that he himself did not actually kill the victims, and therefore the death sentence must be vacated in light of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); and (3) the federal district court erred in denying Chaney an evidentiary hearing in connection with his habeas petition.

This case presents for the first time the interplay of three doctrines: (1) a prosecutor's duty to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); (2) a defendant's constitutional right under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and other cases, to present mitigating evidence before a death sentence is imposed; and (3) the requirement that a defendant kill, attempt or intend to kill, or contemplate that life would be taken, before a death sentence is imposed, consistently with Enmund.

We hold that the federal district court improperly ruled that Chaney made only a general pretrial Brady request for exculpatory evidence. The court therefore applied the incorrect legal standard under Agurs in reasoning that the withheld evidence did not create a reasonable doubt as to Chaney's conviction or sentence. We hold that Chaney made a specific Brady request.

Although we conclude that the withheld evidence would not have affected Chaney's murder conviction, we are convinced that this death sentence cannot constitutionally stand in light of the withholding of the evidence. Under the correct standard applicable where a specific Brady request is made, see Agurs, 427 U.S. at 104, 96 S.Ct. at 2397, the withheld evidence "might have affected" the choice of the death sentence instead of life imprisonment by its effect on the jury, or at least one of the jurors, who made the aggravating circumstances findings that Chaney himself committed the murder and that these aggravating circumstances were not outweighed by one or more mitigating circumstances.

The factual background of the kidnappings and murders

The evidence presented by the State at Chaney's trial, considered in the light most favorable to the guilty verdict, tended to show the facts as follows:

During March 1977, Phillip Ashmore was engaged in the construction business. He and his wife, Kendal Ashmore, also raised Morgan horses at their farm residence in Jenks, Oklahoma. Kathy Ann Brown worked for the Ashmores in that business.

For approximately one month prior to March 17, 1977, a man who identified himself as Richard Elliot had been calling the Ashmore residence and asking Mrs. Ashmore to give him an estimate of the value of some Morgan horses. On March 12, the man called and made an appointment to come to the Ashmore home the next day. He did not keep the appointment but later called Mrs. Ashmore and explained that he could not find their home. He arranged to meet Mrs. Ashmore at 91st Street and Memorial Avenue in Tulsa, Oklahoma at 1:00 p.m. on March 17. VI R. 875-79; I R. 234. ¹

On March 17, Mrs. Ashmore and Ms. Brown came to Mr. Ashmore's office in Tulsa at 9:30 a.m. to pick up the family's blue and white pickup truck. After returning home at 6:00 p.m., Mr. Ashmore received the first of three extortion calls. The caller indicated that Mr. Ashmore's wife and their employee had been kidnapped and that they would be returned safely if Mr. Ashmore paid $500,000. The caller said that he would phone again the next night. Mr. Ashmore then called his attorney, who contacted the Federal Bureau of Investigation. The FBI affixed a recording device to the Ashmores' telephone. VI R. 337-54; I R. 236-38.

At 6:53 p.m. on March 18, Mr. Ashmore received a call from a person with the same voice as the caller from the previous night. The caller directed Mr. Ashmore to leave the money at a rodeo ground in Jenks by 7:30 p.m. or his wife would be killed. The caller also told Mr. Ashmore that his truck was at 91st Street and Memorial Avenue in Tulsa. The call was traced to the telephone at Chaney's residence in Jenks. VI R. 361-63, 418-19; I R. 239-41.

After Mr. Ashmore delivered the money to the rodeo ground, he received another call at 9:27 p.m. from a man with the same voice as the man who had telephoned earlier. The caller told Mr. Ashmore that he had not left the money at the right spot and directed that Mr. Ashmore return to the rodeo ground to pick up the money. The caller indicated that he would phone Mr. Ashmore the next day. The call was traced to a service station telephone booth at 61st Street and Yale Avenue in Tulsa. Chaney's palmprint was taken from the receiver handle of the telephone about three hours later. VI R. 365-73, 424-25, 428, 452; I R. 241-42.

The police arrested Chaney at 3:30 a.m. on March 19 at his Jenks home, which was within two miles of the rodeo grounds where the ransom money was to be delivered. Chaney's fingerprints were found on a torn-up piece of paper in a waste basket in his kitchen. When reassembled, the note contained the words "Richard Elloit" [sic], "1:00 p.m.," and "Thursday," and the numbers "299-9791" and "9148." Richard Elliot was the name given by the man who had called about valuing horses and had arranged to meet with Mrs. Ashmore at 1:00 p.m. on March 17 at 91st Street and Memorial Avenue. The numbers matched the Ashmores' home telephone number and street address. A handwriting expert testified that Chaney made the notations on the torn piece of paper. VI R. 397, 579, 588-89, 1199; I R. 242-43.

The Ashmores' pickup truck had been found at 91st Street and Memorial Avenue at 9 a.m. on March 18, the location the caller indicated in the call at 6:53 p.m. on March 18. A note written on half of a piece of paper in Mrs. Ashmore's handwriting was found in the pickup. The note contained the words "1:00 Thur., 91st and Memorial" and "Richard Eliot," [sic] and the numbers "581-3106" and "352." The other half of the piece of paper was found in the Ashmores' home. VI R. 468-71, 588-89; I R. 238.

The body of Mrs. Ashmore was found on March 22 at 12:45 p.m. in a shallow grave on a tract of land being leased by Chaney near Sallisaw, Oklahoma, approximately 100 miles southeast of Tulsa. Although the size of the tract is not given in the record, it is apparent that it was not small since the witnesses testified that there was a stream or creek in a valley, and that a gravel road ran through the property. VI R. 715-16. Mrs. Ashmore had been strangled with a strip of towel and was found gagged, with her hands tied behind her back. VI R. 719-27; I R. 243. The State's evidence tended to indicate that her death occurred on March 17. Deputy Sheriff Lee of Tulsa County testified that the soil of the grave in which Mrs. Ashmore's body was found, and a heelprint found on the soil, were indicative of rainfall. VI R. 723-24, 735-36; I R. 243. The parties stipulated that the only rain which fell in the Sallisaw area from March 17 through 22 occurred between 7:00 a.m. March 17 and 7:00 a.m. March 18. VI R. 711-12; I R. 243. Dr. Hoffman, the Assistant Chief Medical Examiner for the State, performed an autopsy on March 23. He testified that his findings were consistent with March 17 as the date of Mrs. Ashmore's death. VI R. 832, 854-55, 871; I R. 243.

Two witnesses testified that they observed Chaney on March 17, at 4:30 p.m., walking on his property near the area where Mrs. Ashmore's body was found. VI R. 671-75, 677, 685-89; I R. 237. Another witness testified that he observed Chaney between 3:00 p.m. and 5:00 p.m. on March 17 using a telephone in a convenience store owned by the witness near Sallisaw. The witness testified that Chaney had dirt stains on his pants from the knees down. VI R. 691-97; I R. 237. Telephone records indicated that a telephone call made from the convenience store at 4:39 p.m. was charged to Chaney's residence. VI 793; I R. 237. The person to whom the call was made confirmed that he received the call from Chaney. VI R. 642-43; I R. 237-38.

Chaney did not take the stand. He called a number of witnesses, including several who testified that he had a nonviolent reputation. VI R. 930, 934, 936. Chaney also called a pathologist who testified that the autopsy protocol was most consistent with March 21 or 22 as the date of death. Id. at 1045; I R. 244 n. 3.

The jury found Chaney guilty of murder in the first degree under Okla.Stat.Ann. tit. 21, Sec. 701.7....