Collier v. Norris

• Decision Date: 16 April 2007
• Docket Number: No. 06-2519.,No. 06-2630.,06-2519.,06-2630.
• Parties: Broderick COLLIER, Appellant/Cross-Appellee, v. Larry NORRIS, Director, Arkansas Department of Corrections, Cross-Appellant/Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

485 F.3d 415

Broderick COLLIER, Appellant/Cross-Appellee, v. Larry NORRIS, Director, Arkansas Department of Corrections, Cross-Appellant/Appellee.

No. 06-2519.

No. 06-2630.

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2007.

Filed: April 16, 2007.

Patrick Benca, Little Rock, AR, for appellant/cross-appellee.

Lauren E. Heil, Asst. Atty. Gen., Little Rock, AR, for appellee/cross-appellant.

Before LOKEN, Chief Judge, O'CONNOR^*, Associate Justice (Ret.) and GRUENDER, Circuit Judge.

GRUENDER, Circuit Judge.

Broderick Collier was convicted in Arkansas state court of first-degree murder and sentenced to 44 years' imprisonment. The Arkansas Court of Appeals affirmed the conviction. After the Arkansas Supreme Court denied post-conviction relief, Collier filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court¹ denied habeas relief but granted a certificate of appealability. Collier now appeals the denial of the writ, and we affirm.

I. BACKGROUND

In July 1996, Adam Wilstead was driving past 2205 Walker Street in Little Rock, Arkansas, when shots were fired into his car. He subsequently died from shotgun wounds to the head and neck. Dixie Griffin told investigators that Keon Neeley had fired a shotgun and Collier had fired a pistol at Wilstead's car. Collier was charged with first-degree murder as an accomplice; Neeley was never charged.

A. The Trial Proceedings

Dixie Griffin was the only witness at trial who testified to seeing Collier and Neeley commit the murder. Dixie Griffin lived at 2205 Walker Street with her brother, Duke Hinerman, Lisa Pike Collier ("Lisa Pike"), who was then engaged and later married to Collier, as well as a man named Charles Bell. Dixie Griffin testified that on the night of the murder a car repeatedly drove by the Walker Street house with its headlights turned off. Because her roommate, Lisa Pike, had a verbal altercation with someone one or two weeks before this incident, the women feared that the car was planning a drive-by shooting. Eventually Lisa Pike called Collier, who subsequently arrived at the house with Neeley in Lisa Pike's maroon Oldsmobile. Neeley carried a sawed-off shotgun with duct tape on it that Dixie Griffin recognized as Collier's, and Collier had a pistol. Collier, Neeley and Lisa Pike then went outside, and Dixie Griffin stayed inside by the front door of the house. From her view, Dixie Griffin saw the car drive by again and watched as Neeley and Collier began shooting at the car and continued shooting as they chased the car down the street. They shot at the car until it hit a ditch and wrecked. Dixie Griffin then called the police. The police eventually took Dixie Griffin, Lisa Pike, Collier and Bell to the police station. All four denied knowing who shot Wilstead. Dixie Griffin testified at trial that she did not tell the police that Collier was one of the shooters because Lisa Pike was her best friend and she feared reproach from Collier. Thirteen months later she came forward, told the police what she had seen on the night of the murder and implicated Collier. Dixie Griffin testified that she decided to come forward because she had begun to feel sorry for Wilstead's mother.

Bell testified that he lived and was present at 2205 Walker Street at the time of the Wilstead murder. He testified that after the car drove by a few times Lisa Pike went into her room where there was a telephone. Shortly after she came out of her room, Collier and another man arrived. A few minutes later, Collier, the man he arrived with and Lisa Pike went outside. Bell was in the kitchen when he heard gunshots. Shortly after the gunshots ceased, Collier and Lisa Pike came back inside the house. Dixie Griffin then called the police. Bell admitted that he lied to the police that night when he told them that "he didn't know of anyone from 2205 Walker Street that did any shooting."

Hinerman's testimony revealed that he arrived home from work after the murder and while the police were on the scene conducting their investigation. As Lisa Pike was being escorted out by the police, she whispered into Hinerman's ear to "get the gun." From this, he understood she meant Collier's duct-taped 12-gauge shotgun, which Hinerman then retrieved from the maroon Oldsmobile and hid in the crawlspace underneath the house.² Hinerman was not interviewed on the night of the murder. The following day, Collier asked Hinerman where the shotgun was hidden. After Hinerman told him where to find it, Collier retrieved the gun and expressed his appreciation to Hinerman. It was not until seven months later that Hinerman first told the police what he knew about the Wilstead murder and his conversation with Collier the day after it. Hinerman testified that he decided to come forward after he had been a victim of a shooting himself and began to feel that "anybody that wants to carry around guns and shoot at people or shoot people needs to be taken off the streets."

The remaining state lay witnesses included Henry Baker, Otis Griffin and Rodney Blake. Baker was in the backseat of the car driven by Wilstead at the time of the murder. His testimony confirmed that on the night of the murder they drove by 2205 Walker Street more than once and that Wilstead turned off the headlights as they approached the house. Baker heard shots from both a handgun and shotgun and felt the impact of shattered glass but did not see who had fired the shots. He recalled seeing a burgundy or maroon car that he identified as either a Buick or an Oldsmobile. Otis Griffin, Dixie Griffin's husband, was not at 2205 Walker Street on the night of the murder, but he testified that he later had a conversation with Collier during which Collier confessed to Wilstead's murder. Blake, a neighbor who lived at 2301 Walker Street, testified to hearing shots fired from both a handgun and a shotgun at the time of the murder. Blake stated the shots got "louder and louder" as they got "closer and closer" to his house. In addition to the lay witnesses, the state presented testimony from forensic experts that established Wilstead's car was punctured by shotgun pellets, that Wilstead died from shotgun wounds and that shotgun shells and waddings were found at the crime scene. The forensic evidence also established that the shells found on Walker Street were all fired from the same shotgun and that the waddings found on the street and in Wilstead's car were all from Remington-Peters 12-gauge shotgun shells.

After the trial in the Circuit Court of Pulaski County, the jury convicted Collier of first-degree murder, and the Arkansas Court of Appeals affirmed. Collier v. State, No. CACR00-348, 2001 WL 196953 (Ark.Ct.App. Feb. 28, 2001). Collier did not appeal to the Arkansas Supreme Court.

B. The Post-Conviction Proceedings

Collier timely filed a petition for post-conviction relief in the circuit court under Rule 37 of the Arkansas Rules of Criminal Procedure ("Rule 37 petition"), arguing that the State had suppressed exculpatory evidence in violation of Brady.³ During the course of these proceedings, a hearing was held that adduced the following evidence. Hinerman testified that Detective Eric Knowles told him that he would receive $10,000 from Wilstead's family for information leading to the conviction of the person or persons who murdered their son. He also testified that the day after he gave his first statement to Detective Knowles he received $300 from Sergeant Terry Hastings. Hinerman confirmed that he did not receive any payment or any promise of any payment from the prosecuting attorney's office. Hinerman testified that the state prosecutor on Collier's case, Marianne Wright, explicitly told him that there was no reward, after which he "gave up on the idea pretty much." Finally, Hinerman testified that the remainder of his testimony at Collier's trial was truthful and accurate.

Wright testified that the first time she knew of any payment to Hinerman and any allegation of a promised reward was when she read Hinerman's affidavit during Collier's post-conviction proceedings. Detective Knowles testified that the only time a reward was mentioned was when Hinerman asked him about the Arkansas Crime Stoppers program, which pays money for truthful information that leads to solving a crime. Detective Knowles put Hinerman in contact with Sergeant Hastings of the Crime Stoppers program. Sergeant Hastings testified that he did not remember Hinerman; he could neither confirm nor deny that he arranged for Hinerman to be paid $300; he had no knowledge of any reward fund that was established for the homicide of Wilstead; he did not make any representation to Hinerman or anyone else that he would receive a reward; and, if an officer or a detective were to promise to pay a witness in a case, it would not be consistent with department policy.

Bell and Otis Griffin did not testify at the hearing but submitted affidavits. Bell recanted his trial testimony and stated that although he heard shots fired on the night of the murder, he did not know who fired them and he did not see Collier that night until after the police had arrived. Otis Griffin also recanted his trial testimony that Collier had confessed to his involvement in the crime. Both Bell and Otis Griffin stated in their affidavits that they lied at trial because they believed they would go to jail if they did not testify on behalf of the state.

While the Rule 37 petition was pending, Collier petitioned the Arkansas Supreme Court to reinvest the circuit court with jurisdiction to consider a petition for writ of error coram nobis ("coram nobis petition"),⁴ raising the same alleged Brady violation that he raised in his Rule 37 petition. Collier attached to his coram nobis petition the affidavits from Bell and Otis Griffin. He also submitted an affidavit from Hinerman, which proffered essentially the same statements as those he made at the Rule 37 hearing....