Davis v. Heyd

• Decision Date: 29 May 1973
• Docket Number: No. 72-1512.,72-1512.
• Citation: 479 F.2d 446
• Parties: Linroy DAVIS, Petitioner-Appellant, v. Louis B. HEYD, Sheriff, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

479 F.2d 446 (1973)

Linroy DAVIS, Petitioner-Appellant, v. Louis B. HEYD, Sheriff, Respondent-Appellee.

No. 72-1512.

United States Court of Appeals, Fifth Circuit.

May 29, 1973.

Robert Glass, New Orleans, La., (Court-Appointed), for petitioner-appellant.

Maurice R. Franks, Byron P. Legendre, Asst. Dist. Attys., Parish of Orleans, New Orleans, La., for respondent-appellee.

Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

This appeal is by Davis, a state prisoner under a 15-year sentence for manslaughter, from the denial of federal habeas relief.¹ The central legal issue is nondisclosure by the prosecution of evidence favorable to the petitioner and material to his guilt. The nondisclosed evidence consisted of written out-of-court statements by witnesses and photographs of petitioner, all taken shortly after the incident out of which the charge arose.² We reverse.

The death for which petitioner was convicted occurred in an affray between Davis on the one hand and Reverend Dyer and his sons Joseph, James, and John on the other. Following an earlier difficulty between Davis and members of the Dyer family, Reverend Dyer and his three sons sought out Davis at his mother's home. After words between Reverend Dyer and Davis a scuffle between them ensued, the three sons joined in, and during the scuffle Davis' pistol discharged, killing James Dyer. In this context the obvious possible defenses were self-defense and accident. Self-defense was not interposed, however, and no jury instructions on self-defense were requested.

Louisiana law does not require pretrial discovery of statements taken from potential witnesses.³ According to his affidavit, defense counsel learned of the statements following the trial, and in the offices of the district attorney, when he noticed them in the hands of one of the district attorneys. He filed a motion for a new trial, and the state then revealed the statements and photographs.

1. The affray

The Dyers found Davis at his mother's home, standing in the front doorway. Leaving his sons in the car and cautioning them to remain there, Dyer approached petitioner. Reverend Dyer's trial testimony was that after some brief words on the porch, Davis drew a gun from his pocket and aimed it at Reverend Dyer, Reverend Dyer grabbed him, a tussle ensued, and they fell into the living room. There Davis tried to throw Reverend Dyer down, but Reverend Dyer slung him onto the sofa. At that time, Reverend Dyer said, his three sons came to his aid. The four Dyers struggled with petitioner, who was on the sofa. Reverend Dyer heard but did not see the gun discharge. John Dyer took the gun from Davis. In addition to his testimony, Reverend Dyer gave a statement the evening of the shooting, but it did not differ materially from his trial testimony.

Joseph Dyer testified at trial that he saw Davis pull the pistol on his father while the two men were on the porch, after which a struggle began, and the three sons left the car and ran to the house. They found Reverend Dyer holding Davis on his back on the sofa, they tried to take the gun from Davis, but with one hand free and no one holding his arm, Davis aimed the gun at James and shot him.

Joseph and his father gave statements a few hours after the shooting. In his statement Joseph said that his father and Davis were standing on the porch, he turned his head, and when he looked back they were tussling, and they fell into the front room. At this time, Joseph saw Davis "coming out of his pocket with a gun," and "when he went to aim it . . . James grabbed his arm and at this time Davis pulled the trigger." Joseph was the only witness to see the act of shooting.

John Dyer was in Germany in the armed forces at the time of trial and did not testify. He also had given a signed statement after the shooting and in it he stated that while the two men were talking on the porch he saw Davis back up and "go in his pocket." His brothers ran for the house while he was still in the car. All began tussling and all fell back in the house onto the sofa. When John reached the scene he saw Davis "come up with the gun," with his finger on the trigger. "He was holding the gun with the barrell sic pointed up toward the ceiling. Davis started to bring the gun down and James grabbed him by the arm he had the gun in. I then heard the gun go off and I grabbed him by the arm and put his arm back and took the gun away from him."

Petitioner Davis testified that Reverend Dyer grabbed him and in the ensuing struggle they fell on the floor and Reverend Dyer was choking him. The brothers came in and began kicking him, hitting him in the head, and beating him. His pistol had been stuck in his belt. In the struggle it slipped from his belt and he got it in his hand, how he did not know. He had a finger on the trigger and was attempting to put the safety on with his thumb, they were trying to jerk the gun away from him, he was trying to hold it, and it discharged.

On direct appeal the Supreme Court of Louisiana held that there was no substantial inconsistency between the pretrial statements and the testimony at trial, and thus no unconstitutional suppression of evidence. The federal habeas court, D.C., 350 F.Supp. 958, based its denial of habeas relief on alternative grounds: first, the evidence before the habeas court was insufficient to overcome the presumption of correctness to be given to the state court's findings; second, if it was the duty of the habeas judge to review the record anew, he would have to conclude that there was not error of constitutional dimension, the prosecution, at the worst, having only failed to divulge material that might have assisted in cross-examination.

2. Standard of review

Pursuant to 28 U.S.C. § 2254(d) factfindings by a state court are as a general rule presumptively valid in federal habeas proceedings brought by a state prisoner.⁴ The federal habeas court, however, is not bound by the state court's interpretation of the relevant constitutional law. As Justice Frankfurter wrote in Brown v. Allen, 344 U.S. 443, 506-507, 73 S.Ct. 397, 446, 97 L.Ed. 469, 515 (1953):

. . . State adjudication of questions of law can not, under the habeas corpus statute, be accepted as binding. It is precisely these questions that the federal judge is commanded to decide.

. . . . . .

. . . Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts . . . the District Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.

Accord, Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770, 789 (1963); West v. Louisiana, 478 F.2d 1026 (CA5 1973).

In this case the ultimate question is whether the prosecution failed to disclose evidence so material to the guilt or innocence of the accused that he was denied a fair trial under the teachings of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and related cases. The habeas court reasoned that the out-of-court statements would satisfy the appropriate standard of materiality only if, as a threshold matter, they were inconsistent with the in-court testimony of the Dyers. Thus in explaining the state court's analysis, the federal court stated, "Here the determination of the state court was twofold: first, the statement was not inconsistent with the trial testimony; second, if it was, the difference was not sufficient to make non-production prejudicial." The threshold issue of consistency, the federal habeas court stated, was a question of fact: "What is `consistent' or `inconsistent' . . . is a complex question, but it is basically one that involves `the merits of the factual dispute.'" The habeas court therefore accorded the state court's "finding" of consistency a presumption of validity, then ruled that the presumption had not been overcome, and consequently never seriously considered the ultimate legal question of whether the suppressed statements were material to petitioner's guilt or innocence. To determine whether the habeas court correctly perceived its standard of review, we must briefly review the distinction between law and fact.

To assist in drawing the distinction Professor Morris has suggested as tests: "A question of fact usually calls for proof whereas a question of law usually calls for argument," Morris, Law and Fact, 55 Harv.L.Rev. 1303, 1304 (1942), and "When there is but one account of what happened, and the application of law to that account is problematical, a question of law results," id. at 1314-1315 (crediting Holmes for the rule).⁵ More to the point the Supreme Court in Townsend v. Sain, supra, the precursor of § 2254(d), defined the term "fact" in the following manner:

By "issues of fact" we mean to refer to what are termed basic, primary, or historical facts: facts "in the sense of a recital of external events and the credibility of their narrators . . . ." Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 446, 97 L.Ed. 469 . . . (opinion of Mr. Justice Frankfurter). So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense.

372 U.S. at 309 n. 6, 83 S.Ct. at 755 n. 6, 9 L.Ed.2d at 783-784 n. 6.⁶ In illustration of its distinction between fact and law the Supreme Court has stated that the question whether a confession is voluntary is ultimately a question of law. Thus the Court has explained that in the typical case in which a confession is attacked as involuntary, a trier of fact must initially re-create the external events preceding the confession, such as length of questioning, use of drugs, use of physical force, or use of coercive psychological tactics. Against the...