Perry v. Lockhart

Citation871 F.2d 1384
Decision Date16 June 1989
Docket NumberNos. 86-2262,86-2287,s. 86-2262
PartiesEugene Wallace PERRY, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee. Eugene Wallace PERRY, Appellee, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Jeff Rosenzweig, Little Rock, Ark., for appellant Singleton.

Jo Ann Goldman, Little Rock, Ark., for appellant Perry.

Clint Miller, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before JOHN R. GIBSON, FAGG and WOLLMAN, Circuit Judges.

WOLLMAN, Circuit Judge.

Eugene Wallace Perry appeals the district court's denial in part of the habeas corpus relief Perry requested. The State cross-appeals the order setting aside Perry's sentence of death. We affirm in part, reverse in part, and remand for reinstatement of the death sentence.

On the evening of September 10, 1980, the bodies of Kenneth Staton and his daughter, Suzanne Ware, were found bound and gagged in the back of the Staton Jewelry Store in Van Buren, Arkansas, where they both had worked. Each had been killed by two gunshots to the head fired at close range. An estimated $100,000 worth of jewelry and watches was missing from the store.

In 1981, Perry was convicted of capital felony murder for these killings and was sentenced to death. The Arkansas Supreme Court affirmed the conviction and sentence, see Perry v. State, 277 Ark. 357, 642 S.W.2d 865, 868 (1982), and denied Perry's request for post-conviction relief under Ark.R.Crim.P. 37. 1 Perry v. State, 279 Ark. 213, 650 S.W.2d 240, 243 (1983).

On July 27, 1983, Perry filed a petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254, alleging numerous procedural errors during his Arkansas State court trial. On May 14, 1986, Perry filed a special supplement to his petition, challenging the validity of the death sentence under Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). The district court found no error undermining Perry's conviction, but held that the death sentence was invalid under Collins and ordered that the State either resentence Perry or reduce his sentence to life without parole. 656 F.Supp. 46 (E.D.Ark.1986).

On appeal, Perry raises the following contentions: (1) that he was deprived of his constitutional rights under the compulsory process clause of the sixth amendment, (2) that the state trial court improperly denied a second change of venue despite prejudicial publicity, (3) that pretrial identification procedures were tainted, and (4) that crime scene photos were admitted erroneously. The State cross-appeals the district court's order, arguing that the court misapplied Collins.

The case was submitted November 13, 1987. On January 13, 1988, the United States Supreme Court decided Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). We requested additional briefing and argument on the Collins issue in the light of Lowenfield, and the case was resubmitted following reargument on August 18, 1988.

I.

Perry sought a court order compelling the presence of several people in Alabama who he claimed were alibi witnesses. The gist of Perry's defense was that he was in Alabama at the time of the murders in Van Buren, which is in northwest Arkansas. The State presented seven witnesses who placed Perry in and around the Staton Jewelry Store on the day of the crime and the few days immediately preceding it. Perry proffered eleven witnesses who would place him in Alabama at various times. The state trial court offered to pay the travel expenses for Perry's witnesses but refused to enable Perry to issue subpoenas to compel their live testimony. Seven of the eleven witnesses appeared voluntarily and testified; the testimony of the other four was read into the record from their depositions or from their responses to written interrogatories. The State paid for the cost of the depositions and interrogatories.

The sixth amendment provides, inter alia, that "[i]n all criminal prosecutions the accused shall enjoy the right to * * * have compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI. Before a criminal defendant is entitled to compulsory process, however, he must establish that the testimony of the witnesses whose presence he wishes to compel is favorable and material. United States v. Valenzuela-Bernal, 458 U.S. 858, 868, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982).

The state trial court ruled that compulsory process was unavailable because its subpoena power was limited to the two counties comprising the state judicial district in which it sat. As the State conceded at oral argument, this ruling was erroneous. The availability of compulsory process for out-of-state witnesses is well settled under Arkansas law. See Mackey v. State, 279 Ark. 307, 651 S.W.2d 82, 86 (1983) (defendant in capital felony cases has right to unlimited number of out-of-state witnesses if material); Henry v. State, 278 Ark. 478, 647 S.W.2d 419, 427, cert. denied, 464 U.S. 835, 104 S.Ct. 121, 78 L.Ed.2d 119 (1983); Wright v. State, 267 Ark. 264, 590 S.W.2d 15, 18 (1979); see also Ark.Stat.Ann. Secs. 43-2001, 43-2002, 43-2006 and commentary.

The district court found that the state trial court's error did not warrant habeas relief because Perry had failed to show that the absent witnesses were material. We agree. Perry could not establish that the four absent witnesses were material, because their testimony either was not inconsistent with that of the State's witnesses, or, in the case of the fourth absent witness, Glenda Perry, Perry's ex-wife, was merely a weaker repetition of the testimony of witnesses who did appear at trial.

First, we reject Perry's contention that there must be a per se rule for determining the materiality of a witness, for what is material in the context of one case may be immaterial in another. Second, the testimony of three of the absent witnesses was irrelevant to the question of Perry's guilt, since they did not place Perry somewhere other than northwest Arkansas on the day of the crime. Glenda Perry's testimony placing Perry in Alabama close to the day of the crime is immaterial because when viewed in the context of the testimony of the other witnesses and the evidence adduced at trial, there is no " 'reasonable likelihood that the testimony could have affected the judgment of the trier of fact.' " United States v. Bagley, 473 U.S. 667, 681-82, 105 S.Ct. 3375, 3383-84, 87 L.Ed.2d 481 (1985) (Blackmun, J.) (quoting Valenzuela-Bernal, 458 U.S. at 874, 102 S.Ct. at 3450).

Bearing in mind that the crime occurred on September 10, 1980, the testimony for the State was as follows. Chantina Ginn, temporary traveling companion of Perry's accomplice, Richard Anderson, testified that Anderson and Perry, who was using the alias "Damon Peterson," left their campsite at Beaver Lake, Arkansas, on either the 8th or 9th of September with a gun, a rope, a light brown woman's wig, and a change of clothes. Ginn also testified that the two men returned with two duffel bags full of jewelry on the night of the 10th. Ginn identified Perry as the man who called himself Damon Peterson. Another witness corroborated Ginn's testimony that Perry was camping at Beaver Lake, Arkansas, in early September.

Pat Etier testified that she met a man calling himself Damon Peterson in Van Buren, Arkansas, on the afternoon of September 9. She identified Perry as Peterson and stated that when she met him on September 9, he was wearing a light brown woman's wig. According to Etier's testimony, Perry spent that night with her at her home in Fort Smith, several miles from Van Buren. She drove him to Anderson's motel in Fort Smith at about 8:00 on the morning of the 10th.

Two Van Buren merchants testified that Perry was in their stores on September 9. In addition, Linda Godwin identified Perry as one of two men she saw at about 6:00 p.m. on September 10 walking hurriedly across the parking lot of the shopping center in Van Buren. Finally, Michael Jeffcoat testified that he sold a used car to Perry on September 11 in Rogers, Arkansas.

The testimony of three of the absent witnesses was of little or no assistance to Perry. The following testimony was received by deposition: one witness testified that a lay-away payment was made in Perry's account at a shop in Alabama on September 11, but that he did not see who made it and that it would not necessarily have had to be made by Perry; a clerk in a clothing store in Alabama testified that Perry and his daughter were in the shop sometime between the last week of August and the first two weeks of September; and the manager of the same store stated that Perry was in the store sometime during the "back to school" sale that was held in late August and early September. The district court characterized this testimony as "weak, uncertain, lacking in specificity, and not inconsistent with the state's case."

The in-court testimony of four of the witnesses and the deposition testimony of Glenda Perry did directly contradict the State's case. 2 Perry's younger daughter, Tonya, testified that Perry was in Alabama on September 1st, returned on the 8th and remained until the 10th. Perry's daughter Dawn gave essentially the same testimony, adding that she and Perry had shopped for clothes on the 9th. Wallace Perry, Perry's father, stated that Perry was at his house in Alabama on the night of the 10th and most of the day of the 11th, and Perry's mother, Eulene, corroborated that testimony. Glenda Perry testified that Perry was in Alabama on September 1st, returned "about a week later," and stayed for two or three days.

After finding that Glenda Perry's testimony was not as strong as the two daughters' testimony, however, the district court concluded that because the jury...

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