Mowbray v. Cameron County Texas

• Decision Date: 06 December 2001
• Docket Number: 00-41229,Nos. 00-40504,s. 00-40504
• Parties: (5th Cir. 2001) Freda Susan Mowbray, also known as Susie Mowbray, Plaintiff-Appellant, v. Cameron County, Texas; Benjamin Euresti, Judge; Edmund Cyganiewicz; Luis V. Saenz; Mentford Hesskew, "Dusty"; George Gavito; Steve Robertson; Estella Mauricio; Jean Mowbray; James Mowbray; Margo Mowbray; and Kristen Mowbray, Defendants-Appellees. Freda Susan Mowbray, also known as Susie Mowbray, Plaintiff-Appellee, v. Texas Cameron County; Et Al, Defendants, George Gavito, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 269

274 F.3d 269 (5th Cir. 2001)

Freda Susan Mowbray, also known as Susie Mowbray, Plaintiff-Appellant, v. Cameron County, Texas; Benjamin Euresti, Judge; Edmund Cyganiewicz; Luis V. Saenz; Mentford Hesskew, "Dusty"; George Gavito; Steve Robertson; Estella Mauricio; Jean Mowbray; James Mowbray; Margo Mowbray; and Kristen Mowbray, Defendants-Appellees.

Freda Susan Mowbray, also known as Susie Mowbray, Plaintiff-Appellee, v. Texas Cameron County; Et Al, Defendants, George Gavito, Defendant-Appellant.

Nos. 00-40504, 00-41229

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

December 6, 2001

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[Copyrighted Material Omitted] Appeals from the United States District Court for the Southern District of Texas

Before Jones, Smith, and DeMoss, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

After Fredda "Susan" Mowbray ("Mowbray") had served nine years in prison for her husband's murder, her conviction was set aside, whereupon, under 42 U.S.C. § 1983 and state law, she sued the county that had jailed her and the three prosecutors, three police officers, and the county lab technician who had participated in her trial; she also sued her husband's heirs to regain the proceeds from his life insurance policy. The district court dismissed all of Mowbray's claims but one, against Officer George Gavito.

Mowbray appeals several Fed. R. Civ. P. 12(b)(6) dismissals and a summary judgment based on prosecutorial immunity, absolute witness immunity, and qualified immunity, and a dismissal based on res judicata. Gavito appeals a denial of summary judgment based on qualified immunity. We affirm the dismissals and summary judgment that Mowbray challenges, but we reverse the denial of summary judgment to Gavito and render judgment for him.

I.

One night in September 1987, Mowbray was lying in bed with her husband, Bill Mowbray, when he was shot. Mowbray claimed that her husband had committed suicide; at least twice before, he had attempted suicide, once by shooting himself. Bill Mowbray's car dealership was on the brink of failure, and apparently he had vowed to kill himself rather than face jail for tax evasion or commercial fraud.

Estelle Mauricio, a reserve deputy sheriff, was the first to arrive at the residence after the shooting. She testified that she found the deceased still alive, shot through the head, and lying on his left side with the bed covers pulled up to his shoulder. The bullet had entered the right side of his head, exited the left, and wounded his left hand, which was under his head with a pillow between his head and left hand. His right hand was lying across his chest under the bed covers. No blood or brain matter was on his right hand, and Mauricio never saw his hand being washed at home or in the hospital. Lieutenant George Gavito of the Cameron County Sheriff's Department also was present at the scene.

Dr. Dahm, who conducted the autopsy, stated that if the deceased had shot himself, there would have been blood and brain matter covering his right hand, fingers, and forearm. Finding no blood, Dahm concluded that the death was a murder.

Mowbray was considered a suspect. In early October 1987, Steve Robertson, a lab technician at the Texas Department of Public Safety ("DPS"), met with police officer Mentford "Dusky" Hesskew to discuss the theory that Mowbray had killed her husband. Hesskew was principally employed by the Austin Police Department but also taught classes at the DPS Academy on high impact spatter. Hesskew performed a luminol test on the nightgown Mowbray wore that night to detect the presence of blood. Because luminol reacts to substances other than blood, luminol tests are only presumptive in nature.

On November 3, 1987, Robertson and Hesskew met with prosecutors Benjamin Euresti and Edmund Cyganiewicz and reported that the nightgown had tested positive for blood. On November 9, Robertson conducted two confirmatory blood tests on the nightgown, both of which were negative. At the habeas corpus proceedings, he explained that the negative results could have resulted from the excessive testing the nightgown had already undergone. The tests for the gunshot residue could have destroyed the protein in the blood, and the chemicals sprayed to detect lead residue could have diffused or dissolved the red stains. Robertson never reported these negative results to the district attorneys, Hesskew, or Mowbray's defense counsel.

The prosecution asked Herbert MacDonnell, an expert on blood spatter, to examine Mowbray's nightgown. On November 18, MacDonnell told Euresti and Cyganiewicz that he had found no indication of blood stains or high velocity impact spatter of the sort that would have been present had Mowbray shot her husband while wearing a nightgown. He concluded that if Mowbray had shot her husband, she was not wearing a nightgown at the time.

Cyganiewicz, Euresti, Gavito, Mauricio, and assistant district attorney Luis Saenz prepared a "mock-up" of the shooting scene. The mock-up did not alter MacDonnell's conclusions that he had listed in his report. On December 2, 1987, MacDonnell discussed his report with Gavito and stated that he thought Mowbray had shot her husband while she was naked. The only record of MacDonnell's statement comes from Gavito's deposition testimony. MacDonnell's report was made available to Mowbray's defense counsel ten days to two weeks before trial.

On December 4, 1987, Mowbray was indicted for murder. At trial, the prosecution offered Hesskew's and Robertson's testimony that blood was found on the nightgown; neither side called MacDonnell. Mowbray was convicted and sentenced to life imprisonment. After her petition for writ of habeas corpus was granted and the conviction was set aside, see Ex Parte Mowbray, 943 S.W.2d 461 (Tex. Crim. App. 1996), she was acquitted at a second trial.

II.

Mowbray sued Cameron County, three prosecutors, three police officers, and a county lab technician, alleging conspiracy to violate her civil rights, false imprisonment, malicious prosecution, abuse of process, slander, and intentional infliction of emotional distress. She also sued Jeanne, James, and Margo Mowbray to regain the proceeds of her husband's life insurance policy.

III.

We review a rule 12(b)(6)¹ dismissal de novo, accepting all well-pleaded facts as true. Questions of fact are viewed in the light most favorable to the plaintiff; questions of law are reviewed de novo. Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir. 1994).

Mowbray argues that the district court erred in extending absolute immunity to Euresti, Cyganiewicz, and Saenz, whom she accuses of "shopping for experts," "laboring to sell these experts on their theory," and "rejecting the leading authority in the field . . . and instead selecting an expert who perpetrated junk science." Mowbray also complains that the prosecutors did not turn over exculpatory evidence to the defense until ten days before trial.

Under § 1983, prosecutors are entitled to absolute immunity for acts performed as advocates of the state. Imbler v. Pachtman, 424 U.S. 409, 430-31 & n.33 (1976). For "acts of investigation or 'administration,'" prosecutors are entitled to only qualified immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). Absolute immunity extends to a prosecutor's actions "'preliminary to the initiation of a prosecution and . . . apart from the courtroom.'" Id. at 272 (quoting Imbler, 424 U.S. at 431 n.33). This includes a prosecutor's decision on "which witnesses to call and what other evidence to present," Imbler, 424 U.S. at 431 n.33, and "an out-of-court 'effort to control the presentation of [a] witness' testimony,'" Buckley, 509 U.S. at 272-73 (quoting Imbler, 424 U.S. at 430 n.32) (alteration in original).

All the acts Mowbray lists involve the prosecutors' choosing expert witnesses, preparing those witnesses for trial, and performing the state's trial duties. Because these acts fall under the protection of absolute immunity, the district court did not err in dismissing suit as to them.

IV.

Although Mowbray argues that the court erred in failing to address her slander claim under § 1983, she has not alleged facts sufficient to state a claim. She asserts that after meeting with MacDonnell, Euresti opined that "he was now confident that he could get an indictment." Mowbray never avers that this comment (or any other) deprived her of a constitutional or other federal right; she states only that she "was publicly humiliated and subjected to scorn and ridicule during the investigative phase of the prosecution" and that she was "put through an emotionally damaging trial." Such allegations do not state a claim under § 1983.

V.

Mowbray contends that the court erred in dismissing her § 1983 claims against Hesskew and Robertson for conspiracy to commit perjury and violation of a duty under Brady v. Maryland, 373 U.S. 83 (1963), to disclose exculpatory evidence. Although witnesses are entitled to absolute immunity against § 1983 suits based on their testimony in a criminal trial, Briscoe v. LaHue, 460 U.S. 325, 329-31 (1983), it is less certain whether the rule of Briscoe extends to claims that a witness entered a pre-trial conspiracy to commit perjury.

Of the eight circuits that have addressed the issue, seven have extended absolute witness immunity.² The Second Circuit stands alone in reaching a contrary conclusion.³

We find the reasoning of the majority of circuits persuasive. As a matter of logic, "[a] person may not be prosecuted for conspiring to commit an act that he may perform with impunity." House, 956 F.2d at 720. Hesskew and Robertson cannot be liable under § 1983 for conspiracy to commit perjury where § 1983 grants them absolute immunity for that act.⁴

Moreover, allowing such conspiracy suits would permit most §1983 perjury suits to be restyled as § 1983 claims for conspiracy to commit perjury,...