Guerra v. Johnson

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Before GARWOOD, HIGGINBOTHAM and BARKSDALE; RHESA HAWKINS BARKSDALE
• Citation: Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996)
• Decision Date: 30 July 1996
• Docket Number: No. 95-20443,95-20443
• Parties: Ricardo Aldape GUERRA, Petitioner-Appellee, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant.

Page 1075

90 F.3d 1075

Ricardo Aldape GUERRA, Petitioner-Appellee, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant.

No. 95-20443.

United States Court of Appeals Fifth Circuit.

July 30, 1996.

Scott J. Atlas, John Cavanaugh O'Leary, Jr., Stephanie Kathleen Crain, Michael John Mucchetti, Vinson & Elkins, Houston, TX, Richard Alan Morris, Feldman & Associates, Houston, TX, Theodore W. Kassinger, James Roger Markham, Vinson & Elkins, Washington, DC, Stanley G. Schneider, Schneider & McKinney, Houston, TX, Manuel Lopez, Solar & Fernandes, Houston, TX, J. Anne Bernard Clayton, Houston, TX, for petitioner-appellee.

William Charles Zapalac, Asst. Atty. Gen., Office of the Attorney General for the State of Texas, Austin, TX, for respondent-appellant.

Mary Lou Soller, Grant D. Aldonas and Andrea K. Bjorklund, Miller & Chevalier, Chartered, Washington, DC, for the Government of the United Mexican States, amicus curiae.

Ronald S. Flagg, Julia Elizabeth Sullivan, Marisa Andrea Gomez, Sidley & Austin, Washington, DC, for American Immigration Lawyers' Ass'n, et al., amicus curiae.

Stephen Brooks Bright, Southern Center for Human Rights, Atlanta, GA, for Allard K. Lowenstein Human Rights Clinic, Southern Center for Human Rights and International Human Rights Law Group, amicus curiae.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Contending that the district court's factual findings of numerous instances of police and prosecutorial misconduct, including but not limited to the failure to disclose material, exculpatory evidence to the defense, are clearly erroneous, Gary L. Johnson, Director of the Texas Department of Criminal Justice, Institutional Division, appeals the grant of habeas relief to Ricardo Aldape Guerra, who was convicted of capital murder and sentenced to death in 1982. We AFFIRM.

I.

On July 13, 1982, approximately two hours before midnight, Houston police officer J.D. Harris stopped his police car behind an automobile occupied by Guerra and Roberto Carrasco Flores (Carrasco), at the intersection of Edgewood and Walker Streets. Moments later, the Officer was shot three times in the head with a nine millimeter weapon and died shortly thereafter. Jose Francisco Armijo, who was near the intersection in an automobile with two of his children (one of whom, then ten years of age, was a key witness against Guerra at trial), was also shot in the head with a nine millimeter weapon and died later.

Witnesses informed police that the suspects might be found in the same neighborhood, at 4907 Rusk Street (Guerra's address). About one and one-half hours after Officer Harris was shot, Officer Trepagnier approached a garage next to that address. Using a nine millimeter weapon, Carrasco shot and seriously wounded the officer. Carrasco was killed in the ensuing exchange of gunfire with police. The nine millimeter weapon was found under Carrasco's body, and Officer Harris' service revolver was found under Carrasco's belt, along with another clip for the nine millimeter weapon.

Guerra was arrested moments after Carrasco was shot, when officers found him hiding nearby. A .45 caliber pistol was found within Guerra's reach.

Although the physical evidence pointed to Carrasco as Officer Harris' killer, Guerra was charged with capital murder on the basis of eyewitness identification. (The State did not seek to convict Guerra under the law of parties.)

In October 1982, three months after the murder, a jury found Guerra guilty, rejecting his defense that Carrasco shot Officer Harris; he was sentenced to death. The Texas Court of Criminal Appeals affirmed in 1988, Guerra v. State, 771 S.W.2d 453 (Tex.Crim.App.1988); and the next year, the Supreme Court denied Guerra's petition for a writ of certiorari. Guerra v. Texas, 492 U.S. 925, 109 S.Ct. 3260, 106 L.Ed.2d 606 (1989).

Guerra filed for habeas relief in the state trial court in May 1992. Following the appointment of new counsel that July, he filed an amended application in mid-September. Four days later, the trial court, without conducting an evidentiary hearing and making findings of fact or conclusions of law, recommended denial of relief. In January 1993, the Texas Court of Criminal Appeals accepted the recommendation and denied relief.

Shortly thereafter, in February, Guerra sought federal habeas relief. The district court conducted an extensive evidentiary hearing that November, and, a year later, in November 1994, entered an order granting relief. The order was amended the next May, Guerra v. Collins, 916 F.Supp. 620 (S.D.Tex.1995), and the respondent was ordered to release Guerra unless the State began retrial proceedings by arraigning him within 30 days. Our court stayed the judgment.

II.

As stated, the physical evidence led directly to Carrasco as Officer Harris' murderer. An obvious, critical question is why, if Guerra instead shot the Officer, the murder weapon (not to mention the Officer's service revolver) was found under Carrasco's body one and one-half hours after the Officer was shot. At oral argument, the respondent espoused the theory that, when Guerra and Carrasco exited their vehicle after the Officer pulled up behind them, they picked up each other's weapons, and then exchanged them after the murder. In light of this theory, it goes without saying that the next question that follows immediately is why, if Guerra shot the Officer, Carrasco would have been willing to take back and keep a weapon just used to kill a policeman. Among other obvious reasons for not wanting to be found with a murder weapon is the fact that it is common knowledge that anyone who kills a law enforcement officer will be quickly, vigorously, and aggressively pursued, as reflected by the events in this case.

The State relied on this exchanged weapons theory at trial. In closing argument, the prosecutor stated:

I don't have to prove to you how ... Guerra came in possession of that nine-millimeter pistol....

....

There is no way that I had any type of equipment set up inside of that vehicle to show you what was done inside that vehicle and how the weapons could have gotten into this man's [Guerra's] hands, but you know one thing from listening to the evidence, and you know one thing from listening to when Ricardo Guerra testified. He didn't always keep his pistol tucked into his belt.

Do you recall, right towards the end of his testimony, I asked him, "When you went into the store to get those Cokes [before the shooting], did you still have that pistol tucked inside your belt with your shirt covering it?"

"No, I put it under the seat," and I think you can use your common sense....

Do you think these guys are driving around and they've got those guns tucked in their belts? They take them out and set them on the seat....

Do you think perhaps when they got out of the car, they picked up the wrong gun?

The record, however, contains little, if any, evidence to support this theory. Obviously, this was a critical fact issue at trial. As discussed infra, the State's non-disclosure of exculpatory information concerning this issue was one of the bases upon which the district court granted habeas relief.

At trial, Guerra testified that, on the night of the shooting, he and Carrasco went to the store; that Carrasco had a nine millimeter pistol which he was carrying at his belt; that he (Guerra) also was carrying a gun; that he put his gun under the car seat when he went into the store; that he put it back in his trousers when he got back to the car; and that the gun was in his belt when he got out of the car after Officer Harris arrived at the intersection.

On cross-examination at trial, Guerra denied that he and Carrasco took their guns out of their belts and put them on the seat while they were driving around. He testified further that Carrasco, whom he referred to by the nickname "Werro" (spelled various ways in the record; according to the respondent at oral argument, it meant "the blond one" or "the light-skinned one"), shot Officer Harris and took the Officer's gun; that they ran back to Guerra's residence (4907 Rusk Street); and that, when they arrived, Carrasco had two weapons--his own (the nine millimeter) and the Officer's.

Two of Guerra's roommates testified at trial that, shortly after Officer Harris was shot, Carrasco ran into the house and said that he had killed a policeman; and that Carrasco had the policeman's gun in his belt and another gun in his hand. One roommate testified further that, when Guerra arrived a minute or two later, Guerra said that Carrasco had just killed a policeman.

Two of the State's strongest witnesses at trial were Jose Armijo, Jr. (the then ten-year-old son of the man fatally wounded at the same intersection immediately after Officer Harris was killed), who testified that Guerra shot Officer Harris and his father, and Hilma Galvan, who testified that she saw Guerra shoot Officer Harris. Neither testified, however, at the federal evidentiary hearing.

The district court held that Guerra's due process rights were violated based on findings that, inter alia, (1) police and prosecutors threatened and intimidated witnesses in an effort to suppress evidence favorable and material to Guerra's defense; (2) police and prosecutors used impermissibly suggestive identification procedures, such as permitting witnesses to see Guerra in handcuffs, with bags over his hands, prior to a line-up, permitting witnesses to discuss identification before, during, and after the line-up, conducting a reenactment of the shooting shortly after it occurred so that witnesses could develop a consensus view, and using mannequins of Guerra and Carrasco at trial to reinforce and bolster identification testimony; (3) police and prosecutors failed to disclose material,...