Mills v. Scully

• Decision Date: 26 August 1987
• Docket Number: No. 1289,D,1289
• Citation: 826 F.2d 1192
• Parties: Larry MILLS, Petitioner-Appellee, v. Charles SCULLY, Superintendent, Green Haven Correctional Facility, Respondent- Appellant. ocket 87-2133.
• Court: U.S. Court of Appeals — Second Circuit

Page 1192

826 F.2d 1192

Larry MILLS, Petitioner-Appellee, v. Charles SCULLY, Superintendent, Green Haven Correctional

Facility, Respondent- Appellant.

No. 1289, Docket 87-2133.

United States Court of Appeals, Second Circuit.

Argued May 29, 1987.

Decided Aug. 26, 1987.

Karen Wigle Weiss, Asst. Dist. Atty., Brooklyn, N.Y. (Elizabeth Holtzman, Dist. Atty., Barbara D. Underwood, Asst. Dist. Atty., Brooklyn, N.Y., of counsel) for respondent-appellant.

Diarmuid White, New York City, for petitioner-appellee.

Before LUMBARD, WINTER and MINER, Circuit Judges.

MINER, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York (Broderick, J.) conditionally granting the petition of Larry Mills for a writ of habeas corpus.

Mills was convicted of murder in the second degree, in violation of N.Y. Penal Law Sec. 125.25(1) (McKinney 1975), and criminal possession of a weapon in the second degree, in violation of N.Y. Penal Law Sec. 265.03 (McKinney 1980), upon a jury verdict rendered in the Supreme Court, Kings County, on August 10, 1983. He was sentenced on September 12, 1983 to an indeterminate term of twenty years to life on the murder charge and three to nine years on the weapons charge, the sentences to be served concurrently. The Appellate Division affirmed the conviction in a memorandum opinion, People v. Mills, 105 A.D.2d 759, 481 N.Y.S.2d 411 (2d Dep't 1984) (mem.), and the New York Court of Appeals denied leave to appeal, People v. Mills, 64 N.Y.2d 891, 487 N.Y.S.2d 1038, 476 N.E.2d 1015 (1985). A motion to vacate the judgment of conviction was denied by the Kings County Supreme Court on September 12, 1985, and the Appellate Division, on November 19, 1985, denied leave to appeal from the order denying the motion.

The instant petition for a writ of habeas corpus, pursuant to the provisions of 28 U.S.C. Sec. 2254, was filed after the conclusion of all state court proceedings. The

                writ was granted conditionally by Judge Broderick in a memorandum order dated February 18, 1987.   Mills v. Scully, 653 F.Supp. 885 (S.D.N.Y.1987).  Judge Broderick determined that Mills "was not accorded a fair trial because of the effect on the jury of the failure of either the prosecutor or the defense counsel to correct false and misleading testimony."   Id. at 895.  Accordingly, he concluded that Mills' trial attorney did not provide effective assistance and that the verdict was infected by prosecutorial misconduct.  We reverse
                

BACKGROUND

During the evening of July 4, 1980, Tracy Gist, the girlfriend of Larry Mills, went to a candy store in Brooklyn with her cousin, Barbara Smith. At the store, Gist came upon her brother, who was engaged in an argument with Charles Still. When she approached the two men, Still allegedly made improper advances to her. She then drove with her cousin to a park near the apartment building where she and Mills lived and reported the incident to him. Joined by some friends who were with him in the park, including Tyrone Gibson, and acccompanied by Gist and Smith, Mills began a search for Still. A short time later, Mills and his group found Still, who was with his friend, Lionel Waterman, on a street near the candy store. There followed an argument between Still and Mills, a brief fistfight and a gunshot that struck Still in the left eye and resulted in his death several days later. The encounter took place shortly after midnight on July 5, 1980.

At the trial, the State called three witnesses who were present during the incident--Waterman, Smith and Gist. Waterman testified that he saw Mills' hand go to his waist, where there was an object appearing to be the butt of a weapon. He then turned away and heard a shot a "split second" later. Smith testifed that she saw Mills strike Still with a "shiny object" and that she heard gunfire a few seconds later. The only eyewitness to the actual shooting was Gist, who testified that she "saw Larry Mills pull out a gun and shoot [Still]." Joint App. at 123. Mills gave a completely different version of the events. He testified that Gibson snatched a chain from Still's neck; that Gibson and Still began to punch each other; that Still pulled out a gun and threatened to kill Gibson; and that he entered the fray and was tussling with Still when the gun "went off." Mills' testimony was corroborated in large part by the testimony of Clifton Sykes.

When defense counsel cross-examined Gist, he asked her whether she had testified before a grand jury, and she replied that she had not. She did say, however, that her "statement" had been taken by a stenographer and a "DA" on January 10. In fact, Gist had appeared before a grand jury on January 10, 1983, at which time she denied seeing the shooting. Although defense counsel had been furnished a copy of the transcript of the grand jury testimony, he did not pursue the matter further. Later cross-examination revealed that Gist had given two other statements in which she denied seeing the shooting--one to the District Attorney a week after the shooting and one to Mills' attorney sometime prior to trial. When questioned about the variation in her versions of the incident, Gist testified that she originally was trying to "cover" for Mills and that she was afraid of reprisals from his family. She also indicated that she was threatened by members of the Still family and feared reprisals from them as well.

During the deliberations, the jury requested a readback of the testimony of Gist and Waterman relating to events occurring after the chain-snatching episode, the entire testimony of Mills and the Gist testimony "about being questioned in the grand jury." The jury also requested clarification of the distinction between murder in the second degree and manslaughter in the first degree with respect to the element of intent. The court provided the clarification sought and directed the court reporter to read back the requested testimony. The question regarding Gist's grand jury testimony was answered in the following colloquy:

THE COURT: A portion of your question, ladies and gentlemen of the jury, that dealt with Tracy's testimony about being questioned in the grand jury, I think it was the one question that was read to you, were you questioned in the grand jury, and her answer was no. Was there anything else that you wanted in connection with that?

THE FOREMAN: No.

Joint App. at 431. The jury then resumed its deliberations but returned within a short time to request instructions on the elements of criminal possession of a weapon in the second degree. The Court provided those instructions, and the jury retired once again. Twenty minutes later, the jury returned with a verdict of guilty on both counts of the indictment.

In granting Mills' petition, the district court found fault with both the prosecutor and the defense counsel for their conduct in relation to the testimony of Tracy Gist, and made the following observations:

By its note, the jury at petitioner's trial was obviously grappling with Gist's testimony, and considering whether her trial testimony with respect to witnessing the shooting contributed sufficiently to a finding of intent and cause to satisfy the elements of second degree murder. Her credibility was crucial. The testimony before the grand jury was a factor which the jury should have been able to consider in determining Gist's credibility.

The petitioner's due process rights were violated, and he was denied a fair trial.

653 F.Supp. at 894.

DISCUSSION

I. Prosecutorial Misconduct

"[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.... The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). The prosecutor presenting the government's case need not be aware that testimony is false in order for a due process violation to occur; it is sufficient if another government attorney knows about the false testimony and no steps are taken to correct it. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (promise of leniency known to Assistant United States Attorney who presented case to grand jury but not known to Assistant who conducted trial). Even where defense counsel is aware of the falsity, there may be a deprivation of due process if the prosecutor reinforces the deception by capitalizing on it in closing argument, United States v. Valentine, 820 F.2d 565 (2d Cir.1987); United States v. Sanfilippo, 564 F.2d 176, 178 (5th Cir.1977), or by posing misleading questions to the witnesses, United States v. Barham, 595 F.2d 231, 243 n. 17 (5th Cir.1979). False evidence includes untrue testimony going only to the credibility of a witness. Napue, 360 U.S. at 269-70, 79 S.Ct. at 1177; DeBose v. LeFevre, 619 F.2d 973, 979 (2d Cir.1980).

Prosecutorial misconduct consisting of failure to correct false testimony does not rise to the level of a fourteenth amendment violation unless it can be said that there was a reasonable likelihood that the testimony affected the judgment of the jury or that it may have had an effect on the outcome of the trial. Giglio, 405 U.S. at 154, 92 S.Ct. at 766; Napue, 360 U.S. at 271, 79 S.Ct. at 1178; United States v. Petrillo, 821 F.2d 85 (2d Cir.1987). Such a determination requires an independent examination of the record. United States ex rel. Washington v. Vincent, 525 F.2d 262, 267 (2d Cir.1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976).

A review of the entire record here raises a question as to whether the trial testimony of Tracy Gist can be characterized as false evidence at all. Although Gist first testified that she did not appear before a grand jury, she later said that her statement had been taken by a ...