Fulford v. Maggio

• Decision Date: 29 November 1982
• Docket Number: No. 80-3932,80-3932
• Citation: 692 F.2d 354
• Parties: John FULFORD, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 354

692 F.2d 354

John FULFORD, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary Respondent-Appellee.

No. 80-3932.

United States Court of Appeals Fifth Circuit.

Nov. 29, 1982.

Irving J. Warshauer, New Orleans, La. (Court-appointed), for petitioner-appellant.

Wm. R. Campbell, Jr., Asst. Dist. Atty., New Orleans, La., for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, GEE and GARWOOD, Circuit Judges.

GEE, Circuit Judge:

INTRODUCTION

After a jury trial in the District Court for the Fifteenth Judicial District of LaFayette Parish, Louisiana, petitioner, John Fulford, was convicted of murder and sentenced to life imprisonment. His conviction was affirmed on appeal by the Louisiana Supreme Court, Louisiana v. Nix, 327 So.2d 301 (La.1975), and certain related issues were considered by this court in a decision, Fulford v. Klein, reported at 550 F.2d 342 (5th Cir.1977) (en banc). Here, Fulford advances thirteen issues disputing the district court's denial of his habeas petition. Some raise purely state concerns or are obviously meritless and therefore not deserving of extensive discussion. Others involve potentially problematic aspects of constitutional law and require detailed analysis.

The facts of the present action are well stated in Louisiana v. Nix, 327 So.2d 301 (La.1975). The following summation is offered as a guide to the reader. Frank Corso was shot and killed in an apparent burglary attempt on his home in 1971. After a celebrated murder trial, Fulford and his codefendants, Kirksey Nix and Peter Mule, were sentenced to life imprisonment. Their appeal to the Louisiana Supreme Court presented over 100 "bills of exceptions." All were denied. By this time, Fulford was proceeding primarily pro se. In 1976 Fulford entered the federal system as a habeas petitioner. Because of exhaustion requirements and other delays, the district court did not issue an order in the case until late 1980. Now, over ten years after his trial, we consider the constitutionality of Fulford's conviction.

I. Suppression of Evidence.

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), enunciates the general rule that suppression of material evidence, which is both requested by and favorable to the defense, is a violation of due process irrespective of the good faith or bad faith of the prosecution. 373 U.S. at 87, 83 S.Ct. at 1196. Against this background, Fulford first contends that the prosecution's failure to produce (1) a police report and teletype relating to the murder and (2) the confession of Donald Eugene Smith ¹ is a per se violation of his constitutional guarantees. This argument misreads the primary admonition of Brady.

The guiding principle of Brady is that a jury should be permitted to hear and evaluate all relevant evidence going to a defendant's guilt or punishment. Id. To this end, it does not establish a constitutional right to discovery. Wetherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 845, 51 L.Ed.2d 30 (1977). Rather, Brady requires the prosecution to make available to the defense all requested exculpatory evidence in its possession. In the event requested evidence is not disclosed, Brady next requires a determination of whether the prosecution's actions or omissions resulted in substantial prejudice to an accused's defense. United States v. Felts, 497 F.2d 80, 82 (5th Cir.1974) (per curiam); United States v. Watson, 669 F.2d 1374 (11th Cir.1982) (rev'd on other grounds). As we note below, we are deeply troubled by elements of this claim, however, we do not find the prejudice necessary to warrant reversal.

It is undisputed that in response to a pretrial Brady request the prosecution stated that it held no evidence which the defense might find favorable. Through the good offices of an "insider" at the New Orleans police department, Fulford obtained the evidence that lies at the basis of the present claim. When the fact of this evidence was presented to the prosecution at trial, it again denied the existence of any exculpatory evidence within its files and stated that the police department also had no evidence to offer. The trial record reveals that this was at best an erroneous statement.

While we find the turn of events rather suspicious, under the present circumstances Fulford suffered no substantial prejudice. Whatever its source, the disputed police report was used by the defense at trial for purposes of impeachment although it was not admitted into evidence. This report apparently stated that Mrs. Corso had told investigating officers that two men had broken into her home and shot her husband. Further, neither of the men described within the report matched Fulford's appearance. We note, without holding, that the report was in all probability wrongfully withheld by the prosecution. However, because the jury was able to hear and evaluate the exculpatory information contained in the report we do not find reversible error.

Similarly, we find that the information contained in the teletype would be cumulative evidence at best and would not have contributed to a differing jury verdict. See United States v. Benton, 637 F.2d 1052 (5th Cir.1981). The teletype message described two suspects who differed in appearance from Fulford, but were similar to his codefendants. However, the teletype also stated that a third, undescribed suspect was also wanted for questioning. We fail to discern the exculpatory effect of such a message.

In addition, the message stated that the suspects were driving a blue Mustang. At trial, Fulford's accomplice, James Knight, who was granted immunity in return for his testimony, stated that he drove a green Oldsmobile to and from the crime. Balanced against this was the testimony of one of the defendants' witnesses, Mr. Dittman, to the effect that he had seen a blue Mustang leaving the vicinity of the crime and that he had reported this to the police. Nothing in the record indicates that there was any source, other than Mr. Dittman, for the information in the teletype regarding the Mustang. Since the jury had an opportunity to evaluate the inconsistencies in the prosecution's case we do not find reversible error.

Although our ultimate conclusion must stand, our approach to the confession is a different matter. ² Donald Smith confessed "to the armed robbery and murder, that occurred April 11th, 1971 at the home of the old man, who was killed" in New Orleans. Smith also claimed that he was the perpetrator of a number of robberies in other states and also attempted to exonerate two of his codefendants who were convicted of yet another robbery. Our reading of the record does not disclose whether this document was actually in the possession of the New Orleans police department. See note 1, supra. However, such a finding is not necessary to our conclusion. The totality of the evidence requires us to find that the introduction of Smith's confession would not have affected the outcome of Fulford's trial. Accordingly, any error would be harmless beyond a reasonable doubt. See Clark v. Blackburn, 632 F.2d 531 (5th Cir.1980); United States v. Lay, 644 F.2d 1087 (5th Cir.1981); Wiggins v. Estelle, 681 F.2d 266 (5th Cir.1982).

Two eyewitnesses identified Fulford as one of the perpetrators of the murder. An accomplice, turned government witness, placed him at the scene of the crime. His girlfriend implicated him in the events of that night. In sum the evidence was overwhelming. While the defense presented evidence to contradict the government's case, including alibi witnesses and a witness who strongly suggested that her lover had committed the crime, the jury obviously chose to believe that Fulford was guilty. We do not believe nor can we hold that a vague confession of a convicted felon would have overcome the prosecution's case. Were the evidence less substantial, the interests of justice would require a more complete explanation and inquiry into whether Smith's confession was actually in the possession of the New Orleans police department and by implication, the prosecution. See notes 1 and 2, supra.

II. The Jury Venire.

Fulford's next contention is that the jury venire was unconstitutionally selected because blacks were excluded under the same selection process held to be unconstitutional in Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). Alexander held that Louisiana's method for selecting veniremen was not racially neutral ³ and therefore presumptively violative of a black defendant's rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment where no blacks served on that defendant's jury. 405 U.S. at 632, 92 S.Ct. at 1226. It is arguable that Fulford does not have the requisite standing to press such a claim, ⁴ however, on the present facts we need not reach this issue. Fulford has not submitted evidence to establish the racial composition of the petit jury venire, a threshold requirement for comparing the percentage of blacks on the venire with the percentage of blacks in the community at large. 405 U.S. at 630, 92 S.Ct. at 1225. Moreover, Fulford has not demonstrated that the selection process used in 1968 when Alexander was tried was still in effect four years later. In consequence, this argument presents no ground for habeas relief.

III. Ineffective Assistance of Counsel.

Fulford next raises the customary ineffective assistance of counsel claim. To this end he lists a number of "failures" on the part of his counsel, Wayne Mancuso. We note at the outset that within this circuit "[w]e interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering effective assistance." Mackenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960) (emphasis...