Lindsey v. King, 85-3150

• Decision Date: 13 August 1985
• Docket Number: No. 85-3150,85-3150
• Citation: 769 F.2d 1034
• Parties: Tyronne LINDSEY, Petitioner-Appellant, v. John T. KING, etc., et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1034

769 F.2d 1034

Tyronne LINDSEY, Petitioner-Appellant, v. John T. KING, etc., et al., Respondents-Appellees.

No. 85-3150.

United States Court of Appeals Fifth Circuit.

Aug. 13, 1985.

Paul S. Weidenfold, Steven Lemoine and Herbert V. Larson, New Orleans, La. (Court-appointed), for petitioner-appellant.

William J. Guste, Jr., Baton Rouge, La., William C. Credo, III, Asst. Dist. Atty., Dorothy Pendergast, Gretna, La., for respondents-appellees.

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

Before GEE, POLITZ, and JOHNSON, Circuit Judges.

GEE, Circuit Judge:

Tyronne Lindsey, a death-sentenced inmate of the Louisiana State Penitentiary, appeals from the denial by the district court of his petition for a writ of habeas corpus. 28 U.S.C. Sec. 2254. As grounds for relief, he alleges that the prosecutor failed to disclose exculpatory material as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1965), and that his sixth amendment rights were violated by the ineffectiveness of his trial counsel. Finding merit in his Brady claim, we do not reach the issue of ineffectiveness of counsel.

The Crime and The Trial

John Knopf and Stephen Birks were returning to their parked cars in the Oakwood Shopping Center in Gretna, Louisiana, at approximately 7:30 p.m. on the evening of December 19, 1979, when they heard muffled screams. As they moved toward the screams, they noticed a vehicle approximately 10 to 15 feet from them with an open door. When Knopf shouted, the head of a young black male appeared above the passenger door and then disappeared as the black man ducked and ran from the car. A white woman also ran from the car. Knopf and Birks followed the black man, Birks running behind him but down the same aisle and Knopf running down the next parallel aisle. After the three men had run 30 to 40 feet, the black man turned and pointed a gun at Knopf, facing Knopf for five to ten seconds, and then ran on. During this confrontation, Knopf and the black male were separated by two rows of parked cars, a distance of 25 to 30 feet. A third person, Richard Alexander, also heard the screams and observed Birks and Knopf chasing the black man. At one point, the black man ran past Alexander at a distance of 40 to 50 feet.

After the black male escaped, those present turned their attention to the woman who had also fled the car. Earline Kidner had been shot in the back and was taken to West Jefferson Hospital, where she died the following day.

Immediately after the shooting, the Jefferson Parish Sheriff's Office initiated an investigation of the incident. Several investigators, including a Detective DeNoux, converged that evening at the shopping center. Deputy Kohler's initial field report identified Birks, Knopf and Alexander as potential witnesses but stated that Alexander "observed only Negro male fleeing from two witnesses. He does not feel he could identify perpetrator."

The next day, when the sheriff's office learned that Mrs. Kidner had died, Detective DeNoux was assigned to direct the investigation. That evening DeNoux obtained a statement from Birks which described the perpetrator as 5'6" or 5'7"', 17-18 years old, with a short bush style haircut and wearing a dark waist-length jacket. The statement also indicates that Birks did not think he would be able to identify the assailant. At approximately the same time, Knopf gave a statement to Detective Nuzzolillo which described the assailant as 5'6" or 5'7", 17-18 years old, 130-150 pounds, with a short Afro haircut, no facial hair and wearing dark pants, dark shoes, a dark shirt and a light weight dark-colored waist-length jacket. His statement indicates that he felt he could make an identification. On December 22, the Jefferson Parish detectives received information that the defendant, Tyronne Lindsey, was a possible suspect. His photo was placed in a photographic lineup on December 23, at which time Knopf tentatively identified him as the perpetrator.

Four days after Knopf's tentative identification, DeNoux spoke with Alexander by phone. The police report describes the conversation in detail and notes that Alexander described the perpetrator as 5'4" to 5'6", 17-18 years old, 140 pounds, and wearing a dark brown jacket and blue jeans. The police report goes on to state that

Mr. Alexander stated that he did not see the perpetrator's face and stated he saw only what he described as a "silhouette" of the perpetrator. Mr. Alexander concluded that viewing any photographs would be useless because he did not see the perpetrator's face. (emphasis added).

This excerpt from the police report has been referred to in this case as the "Alexander statement" and forms the basis for Lindsey's Brady claim.

The next development of significance occurred on January 3, when Tyronne Lindsey, Lester Thomas, Joseph Smith and Lawrence Clark, Jr., were arrested on other charges by the New Orleans Harbor Police. Detectives Hidding and Morton immediately went to the Harbor Police Station to photograph the four whom the Harbor Police had arrested. When Knopf viewed these Polaroid prints, he identified Tyronne Lindsey as the man who had pointed the gun at him. After learning of the positive identification, Detective DeNoux and Sergeant Beckendorf questioned Smith, Thomas and Lindsey about the shooting of Mrs. Kidner. Joseph Smith told the officers that he knew nothing about the incident. Lester Thomas admitted that he was at the scene but stated that he had nothing to do with the actual murder, naming a Kenneth Batiste as the murderer. After Lester Thomas recorded his statement, Joseph Smith gave a second statement which implicated Tyronne Lindsey. He denied any first-hand knowledge of the incident, claiming that Lindsey had told him that he had committed the murder. Immediately after Smith gave his second statement, Lester Thomas gave another statement in which he changed the identity of the murderer from Kenneth Batiste to Tyronne Lindsey.

Tyronne Lindsey was then interviewed and his statement recorded. He admitted that he was present at the Oakwood Shopping Center on the evening of December 19, but denied any direct participation in the shooting of Mrs. Kidner. Lindsey stated that he went to the shopping center with Lester Thomas, Joseph Smith, and Sidney Moses for the purpose of snatching a purse. He claimed that one of the others told him to snatch Mrs. Kidner's purse but he refused. According to his statement, Lester Thomas and Sidney Moses then approached Mrs. Kidner to snatch her purse. He claims that Sidney Moses carried the gun and shot Mrs. Kidner. His statement gave accurate addresses for both Lester Thomas and Sidney Moses and described Moses' clothing on the evening of December 19 as blue jeans, a sweater, and a windbreaker. Sidney Moses bears a striking physical resemblance to Tyronne Lindsey.

The following day arrest warrants for Tyronne Lindsey, Lester Thomas, and Joseph Smith were issued. Several days later, on January 10, Mrs. Kidner's sister contacted Detective DeNoux. She had placed reward notices in the Times Picayune and spoken with Mr. Alexander. She told Detective DeNoux that Alexander now felt that he could identify her sister's assailant. The description of this conversation in the police report also notes that Alexander had previously said that he saw only a silhouette and could not identify the perpetrator. Nevertheless, when Alexander was interviewed again on January 12, 24 days after the incident, he positively identified Tyronne Lindsey as the perpetrator. The police report of this interview indicates that Alexander had seen photographs of Lindsey, Thomas and Smith on television after their arrest for the murder of Mrs. Kidner, but he said he could not remember what the men on television looked like. The photograph of Tyronne Lindsey was also published in the January 4 "Times Picayune," a New Orleans daily paper. Shortly after Alexander's January 12 interview, the Jefferson Parish Police Department closed the case; and Tyronne Lindsey was indicted the next month.

The Indigent Defender Board was appointed to represent Lindsey, and his trial was set for July 14, 1980. Lindsey saw his trial attorney, George Richard, for the first time on May 23. A week later, Mr. Richard filed pretrial motions which included a Motion for Production of Exculpatory Evidence and a Prayer for Oyer seeking all prior statements of witnesses which could be used for impeachment purposes. The prosecutor made the following response to the Prayer for Oyer:

Immediately after the commission of this offense, Richard Alexander stated that he did not know if he could make an identification of the suspect. Since the date of the crime, he became more certain in his ability to identify the man who committed the crime and has made a positive identification of Tyrone [sic] Lindsey on January 12, 1980.

Mr. Alexander has stated that he had seen 3 Negro males on television just after their arrest, but could not remember then [sic] facial features after they appeared on television.

Mr. Richard, unsatisfied with this response, continued to press for disclosure of exculpatory material. He subpoenaed the district attorney's file and succeeded in getting an in camera inspection of the file by the state trial judge. After that inspection the trial judge ordered the prosecution to produce the statement by Richard Alexander which said that he "couldn't identify who it was" if it called Alexander to identify Lindsey as the perpetrator. ¹ In response, the prosecutor produced the January 12 statement in which Alexander identified Lindsey but did not produce the earlier statement contained in the police report, in which Alexander indicated that he did not see the killer's face and could not identify him.

The case proceeded to trial. The state called Knopf as an identification witness and Alexander as a second identification witness....