Ross v. Heyne

• Decision Date: 07 February 1980
• Docket Number: No. S 79-127.,S 79-127.
• Citation: 483 F. Supp. 798
• Parties: Magnolia ROSS, Petitioner, v. Robert P. HEYNE, Theodore Sendak, Respondents.
• Court: U.S. District Court — Northern District of Indiana

483 F. Supp. 798

Magnolia ROSS, Petitioner, v. Robert P. HEYNE, Theodore Sendak, Respondents.

No. S 79-127.

United States District Court, N. D. Indiana, South Bend Division.

February 7, 1980.

David Capp, Merrillville, Ind., for petitioner.

Theodore L. Sendak, Atty. Gen. of Indiana by David L. Steiner, Deputy Atty. Gen., Indianapolis, Ind., for respondents.

MEMORANDUM OPINION AND ORDER

ALLEN SHARP, District Judge.

This Court now considers petitioner's request for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Magnolia Ross bases her petition on two grounds contending in both a violation of due process. For the reasons stated below, this Court finds the petitioner was denied the fundamental due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and that her petition for a writ of habeas corpus must be granted.

Petitioner Magnolia Ross and five others, Robert S. Spencer, Floyd Fayson, Leroy Hemphill, Edward Gillespie and Beatrice Ivy, were charged by information in the Lake Superior Court, Crown Point, Indiana, on November 20, 1968, with Inflicting Injury in Perpetration of Robbery and with Robbery. These charges stemmed from an assault and robbery of Father Peter Bankerovich on November 14, 1968 in Gary, Indiana. Father Bankerovich was robbed by a group of assailants, none of which he could identify at trial. During the robbery he was severely beaten with a baseball bat¹ and left partially paralyzed. The assailants made off with two dollars the priest carried with him at the time. Defendants Fayson, Gillespie and Spencer pleaded guilty to the robbery count and the State dismissed the inflicting charge. Each of them was sentenced to ten (10) to twenty-five (25) years imprisonment which was eventually corrected to a fixed term of ten (10) years. Defendant Hemphill pleaded guilty to an amended count of robbery while armed and was sentenced to ten (10) years imprisonment. No charges were ever brought against defendant Ivy.

Ross, the petitioner in the instant case, was the only defendant of the six to go to trial. She was convicted by a jury on both counts and was sentenced to life imprisonment on the inflicting count and ten (10) to twenty-five (25) years imprisonment on the robbery count. In considering petitioner's claim, this Court has carefully examined the entire state court record. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Petitioner's conviction was affirmed on appeal to the Supreme Court of Indiana in Ross v. State, Ind., 377 N.E.2d 634 (1978).

At trial, the prosecution rested a major portion of its case upon the testimony of its chief witness, Robert Spencer, an admitted participant in the crime, who had agreed to testify for the state in return for its dismissing the inflicting count.² Spencer testified to Ross' participation in both the robbery and the beating stating he observed Ross strike the victim with the bat at least once.

On direct examination, the prosecutor asked no questions concerning the plea agreement. Upon cross-examination, counsel for the defendant petitioner asked Spencer one question as to whether he had been promised any "consideration" for his testimony. Spencer replied in the negative.³ During redirect, the prosecutor remained silent as to the existence of a plea agreement.

From a reading of the transcript of the evidentiary hearing, conducted pursuant to Indiana Post-Conviction Rules 2 and 1, § 5, it is abundantly clear that a plea agreement had been reached between the witness Spencer and the State. Moreover, it is clear the prosecution informed the counsel for defendant-petitioner of the agreement⁴. Spencer had been informed of the offer from the State for his testimony by his attorney, who was also present at trial during the perjured testimony⁵ Except for the single question referred to above, no mention was made of the plea agreement and no effort was undertaken by the prosecutor, Ross' counsel or Spencer's counsel to correct the perjured testimony. Because of this failure, petitioner now contends, 12 years later, that her conviction was obtained through the use of knowingly false testimony and, as such, it was a violation of her due process rights.

I.

The Court is faced with something more than a withholding of evidence problem, as found in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). It must be determined whether the obvious duty of the prosecutor under Napue and Giglio, to inform the jury of any evidence that would affect the credibility of the witness, extends to a case where defense counsel was aware, well in advance of trial, of the existence of such evidence but refused to use it. Where defense counsel, in a knowing and intelligent decision on trial strategy, refuses to exploit a witness' perjured testimony, does due process require the prosecution to do so? In other words, does the duty of the prosecutor to inform the jury of the existence of a plea agreement require him to encroach upon a defendant's strategic and knowing choice not to offer evidence of the agreement? To these last two inquiries, this Court must answer yes.

It is well settled that deliberate deception of a court and jurors by the presentation of known false evidence cannot be reconciled with the rudimentary demands of justice. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). "The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Napue, supra, 360 U.S. at 269, 79 S.Ct. at 1177 (1959). This principal applies even where the evidence would only affect the credibility of the witness since "The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence." 360 U.S. at 269, 79 S.Ct. at 1177.

In Napue an accomplice testified that he had received no promise in return for his testimony against the defendant. The prosecutor knew favorable consideration was promised to the witness but did nothing to correct the witness' false testimony. The Supreme Court of the United States held that a failure of the prosecutor to correct the knowingly false testimony of the witness was a violation of defendant's due process rights. The defendant in Napue was unaware until after his conviction that any plea agreement had been discussed. In Giglio, the Supreme Court again held that the prosecutor's failure to present all material evidence to the jury constituted a denial of due process which required a new trial. In Giglio as in Napue, however, the defendant was not aware of the fact a plea agreement was made until after conviction. Such is not the case here.

Were this a case of the prosecutor withholding evidence from the jury and the defendant, this Court would not hesitate in its granting of the writ. However, where defense counsel, with the knowledge of a plea agreement, chooses not to exploit the perjury of a state's witness for strategic purposes, the mandate of the Giglio and Napue appears less than clear. Courts of Appeals have examined the issue in a factual context similar to the one at bar and have not appeared unequivocable in ordering a reversal. In United States v. Decker, 543 F.2d 1102 (5th Cir. 1976), the court held that the Government fulfilled its duty of disclosure by supplying defendants with its recollection of the true circumstances of certain plea negotiations of a witness at a time when recall and further exploration by defense counsel was possible. The court did, however, emphasize in Decker that its decision rested in part upon the fact the jury was fully informed of the existing plea agreement. 543 F.2d at 1105. In Decker, the Government's witnesses incorrectly stated the circumstances surrounding their plea agreement. Upon recollection of the true factual setting of the agreement, the Assistant United States Attorney provided defendants with the correct information in time to use it at trial. See also, United States v. Alonzo, 571 F.2d 1384 at 1386 (5th Cir. 1978) (related case).

Similarly, the Fifth Circuit Court of Appeals in a footnote expressed hesitation in overturning a conviction on grounds that the prosecutor failed to correct false evidence if defense counsel knew the evidence was false and simply allowed it to go uncorrected. United States v. Barham, 595 F.2d 231, 243 n. 17 (5th Cir. 1979). The Barham court did in fact reverse the convictions relying on Giglio and United States v. Sanfilippo, 564 F.2d 176 (5th Cir. 1977), emphasizing the intentional misleading questions of the prosecutor on redirect compounded the deception of the testimony upon the court.

In this case, the prosecutor had informed the defendant, through her counsel well in advance of trial, the fact that Spencer had made a plea agreement and would testify for the State. Neither the prosecutor nor the defense counsel exploited the fact of the perjury. This factor distinguishes the case at bar from Napue, Giglio and their progeny and lends some merit to the argument that defense counsel's failure to pursue the obvious perjured testimony was a knowing and intelligent decision of trial strategy and, as such, a waiver of any due process violation. This argument poses the question whether a defendant can have it both ways at trial, withholding evidence of perjury gambling on acquittal without presenting it, and then later, after the gambit fails, present such withheld evidence at a subsequent proceeding under 28 U.S.C. § 2254. Other courts have not been sympathetic to this tactic and have refused to consider a due process violation filed by a convicted defendant where he made the conscious choice to conceal evidence of perjury at trial. Jacobanis v. United States, 256 F.2d 485 (1st Cir. 1958).

Although this "waiver theory" has some arguable validity, this Court cannot ignore the...