Lugo v. Munoz, 81-1649

• Decision Date: 22 June 1982
• Docket Number: No. 81-1649,81-1649
• Parties: Ramon Ramos LUGO, Petitioner, Appellant, v. Miguel Gimenez MUNOZ, Etc., et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 7

682 F.2d 7

Ramon Ramos LUGO, Petitioner, Appellant, v. Miguel Gimenez MUNOZ, Etc., et al., Respondents, Appellees.

No. 81-1649.

United States Court of Appeals, First Circuit.

Argued Feb. 5, 1982.

Decided June 22, 1982.

Arturo Aponte Pares, San Juan, P. R., with whom Blas R. Ferraiouli, San Juan, P. R., was on brief, for petitioner, appellant.

Federico Cedo Alzamora, Asst. Sol. Gen., Dept. of Justice, San Juan, P. R., with whom Hector A. Colon Cruz, Sol. Gen., San Juan, P. R., was on brief, for respondents, appellees.

Before COFFIN, Chief Judge, GIBSON, Senior Circuit Judge, ^* and BOWNES, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

In 1977, petitioner Ramon Ramos Lugo was convicted of first-degree murder in the Superior Court of Puerto Rico. Petitioner here appeals the district court's denial of his petition for a writ of habeas corpus, 28 U.S.C. § 2254. He alleges (a) that the Government violated his right to due process by suppressing certain evidence favorable to him, (b) that, on appeal, he was entitled to a complete transcript of the oral evidence presented at his trial, and (c) that the court erred in its jury instructions regarding accomplice testimony. For the reasons hereinafter set forth, we affirm.

Lugo was convicted of murder for brutally killing a young man named Juan Ramon Cruz on the night of March 24, 1973. The story which emerged at trial implicated two young men besides the petitioner in the murder. The three men were tried together in the Puerto Rico court. Only one eyewitness of the murder testified at trial, one Luis Antonio Toro Perez, also known as "Yaco." The testimonial evidence offered by Yaco stands unrefuted, except for mere minor discrepancies and some understandable inconsistencies. We will briefly recapitulate Yaco's testimony as to the night in question.

I.

Petitioner and one of his co-defendants, Roberto Diaz Suarez, met at an athletic park. Yaco was also at the park. Lugo and Suarez had some rum which they offered to Yaco. When Yaco refused the rum, the two forced him to drink it.

In a short while, Yaco left the park to go home. Lugo and Suarez followed him. When the three of them reached a bridge, Yaco told the two he wanted to go home to sleep. Lugo and Suarez would not let Yaco go. A car approached the bridge, blinking its lights as if to give some kind of signal. The car pulled up to them and Yaco recognized the two young men who were in it. The driver was Francisco Egipciaco, the third co-defendant in petitioner's trial, and beside him was Juan Ramos Cruz, the man who was later killed. Lugo and Suarez got into the car with Egipciaco and Cruz and forced Yaco to get in also.

The five drove first to a bar where they each had several beers. Next they went to a market and bought some food. They then continued to a nearby beach. Once on the beach, Cruz got out of the car to urinate. Egipciaco handed Lugo the car keys. At this point Yaco wanted to get out of the car but Egipciaco aimed a gun at him and told him that he couldn't. Lugo opened the trunk of the car and removed a tire jack and a socket wrench. At that point, Egipciaco told Yaco to get out of the car, still aiming the gun at him.

Suarez held Cruz while Lugo hit him over the head with the tire jack. Both Suarez and Lugo continued to hit Cruz after he fell to the ground. Egipciaco kept the gun aimed at Yaco.

Suarez and Lugo put the victim in the trunk of the car. They later deposited his body by the side of the road. They ordered Yaco to go to the house of Cruz's aunt to tell her where her nephew was. The three co-defendants continually threatened Yaco to get him to do what they ordered. Yaco went to Cruz's aunt's house and told her where the nephew was, but she did not believe him.

The three co-defendants took the deceased's wallet, gave Yaco $39 out of it, and kept the rest. They then threw the wallet in the alley where Yaco lived. Yaco testified that the three discussed that since Yaco was "the most stupid of them" the authorities would believe Yaco had killed Cruz.

On cross-examination, Yaco admitted that a first statement given by him to the authorities, on March 25, 1973, had been false. He said that he didn't tell the truth at that time because he had been threatened and he was bewildered and too frightened.

II.

Petitioner argues that the prosecutor had the duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny to inform him that a Puerto Rico court had ordered psychiatric evaluations of the prosecution's main witness, Yaco, in a case which was pending against him. Yaco had been accused of grand larceny, a felony, on September 6, 1972, nearly seven months before the events that culminated in petitioner's conviction in the case now before us. At Yaco's preliminary hearing on the larceny charge, the court found reasonable grounds to believe that Yaco was mentally incompetent to stand trial. On October 4, 1972, the court ordered that Yaco be submitted to a psychiatric examination. ¹ This information was not given by the prosecutor to the petitioner at any time before or during the murder trial.

Petitioner argues that he was thereby deprived of the right to impeach the witness on two grounds: (1) being accused of a felony, and (2) being mentally incompetent. Petitioner argues that the deprivation of his right to cross-examine the witness violated his right to a fair trial. We cannot agree.

In Brady v. Maryland, supra, the court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196. In other cases, however, the Supreme Court and other courts have drawn a distinction between evidence which is exclusively within the prosecutor's control and knowledge and that which is not. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court held:

(T)he fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered from a neutral source after trial.... If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State's possession as when it was found in a neutral source, there would be no special significance to the prosecutor's obligation to serve the cause of justice.

at 111, 96 S.Ct. at 2401. And, in the same opinion, the Court cited with approval the California Supreme Court when it wrote that prosecutors "are under no duty to report sua sponte to the defendant all that they learn about the case and about their witnesses. In re Imbler, 60 Cal.2d 554, 569, 35 Cal.Rptr. 293, 301, 387 P.2d 6, 14 (1963)." 427 U.S. at 109, 96 S.Ct. at 2400.

In United States v. Soblen, 301 F.2d 236 (2d Cir.), cert. denied, 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962), a case decided before Brady, the court held that while the prosecution had the duty to disclose exculpatory facts within its exclusive control, it had no such burden when the facts were readily available to a diligent defender. 301 F.2d at 242. In that case, the facts which were alleged to have been suppressed by the Government were a matter of public record.

In this case too, the facts which petitioner alleges to have been suppressed by the Government were a matter of public record.

The purpose of the Brady rule is not to provide a defendant with a complete disclosure of all evidence in the government's file which might conceivably assist him in preparation of his defense, but to assure that he will not be denied access to exculpatory evidence known to the government but unknown to him. (Emphasis added.)

United States v. Ruggiero, 472 F.2d 599, 604 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2772, 37 L.Ed.2d 398 (1973), as quoted in Hampton v. United States, 504 F.2d 600, 603 (10th Cir. 1974), cert. denied, 421 U.S. 917, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975). See also United States v. Purin, 486 F.2d 1363, 1368 n.2 (2d Cir. 1973), cert. denied, 417 U.S. 930, 94 S.Ct. 2640, 41...