Smith v. Secretary of New Mexico Dept. of Corrections, 93-2218

Decision Date07 March 1995
Docket NumberNo. 93-2218,93-2218
Citation50 F.3d 801
PartiesWilliam SMITH, Petitioner-Appellant, v. SECRETARY OF NEW MEXICO DEPARTMENT OF CORRECTIONS; Derald Kerby, Warden, Central New Mexico Correctional Facility, Respondents-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Stephen P. McCue, Federal Public Defender, Albuquerque, NM, for petitioner-appellant.

Margaret McLean (Tom Udall, Atty. Gen., with her on the brief), Asst. Atty. Gen., Santa Fe, NM, for respondents-appellees.

Before BRORBY, LOGAN and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

Petitioner-appellant William J. Smith appeals the district court's order denying his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. Mr. Smith's primary basis for requesting relief from his two 1978 first degree murder convictions in New Mexico state court, and his corresponding consecutive life sentences, is the prosecution improperly withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. Our jurisdiction 1 arises under 28 U.S.C. Sec. 1291.

I. BACKGROUND
A. Preliminary Facts 2

During the afternoon of Friday, August 12, 1977, rancher Wayne Wallace found the bodies of two young women in one of his corrals in rural Torrance County, New Mexico, near the small town of Mountainair. One of the bodies, later identified as that of Leslie McDonnell, was clothed in a yellow Budweiser T-shirt, jeans and no shoes. The other body, later identified as Cari Talton, a.k.a. Cari Newell, 3 was found naked. A pair of jeans, a green T-shirt with the word "Okies" on it, and a pair of tan boots and socks were found next to Ms. Talton's body; however, no underwear could be located.

Autopsies were performed the next day by Dr. J. Gauthier of the State Medical Examiner's Office. His examination of the partially decomposed bodies revealed Ms. McDonnell had been shot in the head by what could have been a shotgun, and Ms. Talton had been shot in the head and in the right side of her pelvis. 4 Based on his finding of shotgun pellets and wadding in the vicinity of both of Ms. Talton's wounds, Dr. Gauthier concluded she had been shot with a shotgun, although he could not determine whether the same shotgun inflicted both of her wounds. Nelson Welch, an expert for the prosecution, testified 5 although Ms. Talton had in fact been shot by a 12-gauge shotgun, he could not determine whether State's Exhibit 44, a 12-gauge shotgun belonging to Mr. Smith, was the gun actually used to shoot her. David Ramirez, a criminalistics expert, testified there were no workable prints on Exhibit 44, nor was there any indication the weapon had recently been cleaned. Dr. Gauthier was unable to determine the precise time of death due to the decomposition of the bodies. He did indicate, however, that the degree of decomposition of the bodies was consistent with the women having been dead for two to three days. 6

Because the women's bodies were found within the geographical limits of Torrance County, the initial investigation was undertaken by the Torrance County Sheriff's Department and the New Mexico State Police. When it was subsequently learned the women were from Albuquerque, in Bernalillo

County, the Albuquerque Police Department also became involved. Prior to the time when the decision was made to prosecute these cases in Bernalillo County, the cross-jurisdictional nature of these cases resulted in two different investigative tracks. The Bernalillo County investigation focused on Mr. Smith and some of his friends, while the Torrance County investigation targeted "Randy" Newell.

B. The Results of the Bernalillo County Investigation

Robert Hume had been living with Ms. McDonnell for about a year and a half at the time of her disappearance. He told authorities he first met Ms. Talton on Monday, August 8, 1977, when she and Ms. McDonnell arrived at the home of Mr. Hume and Ms. McDonnell. Mr. Hume indicated the two women stayed for an hour or so before they left to go out drinking and looking for drugs. The women went to a party that night at the home of one of Mr. Smith's friends, Rick Emmons. Ms. Talton, who was living with her common law husband "Randy" Newell, met Mr. Smith at the party and they had sexual intercourse numerous times that evening. At the same party, Ms. McDonnell met Billy Grubbs, Mr. Smith's roommate, and she ended up spending the night with him at Messrs. Smith and Grubbs' house. The next time Mr. Hume saw Ms. McDonnell was at 5:30 a.m. on Tuesday morning, when she returned home. Mr. Hume stated when Ms. McDonnell came home, she was crying and she asked him to hold her because she had used too much cannabinol, the active ingredient in marijuana, that night.

When Mr. Smith awoke on Tuesday morning, August 9, he discovered a gram of cannabinol, which was worth about $100, was missing from his stash of drugs. He testified he assumed Ms. Talton had taken it. At around 10:00 a.m., he drove his van to the residence of two of his friends, Harvey Bylsma and Ginger Donham. Mr. Smith wanted Mr. Bylsma's help in retrieving his pickup, which had been impounded. Mr. Smith also realized Mr. Bylsma's neighbor had a phone, and Mr. Smith had Mr. Bylsma call Mr. Smith's boss to let him know he would not be coming into work that day. Approximately half an hour later, Mr. Smith, along with Mr. Bylsma, Ms. Donham and her daughter April, left Ms. Donham's house and went to Ms. McDonnell and Mr. Hume's house to inquire about the missing cannabinol. Mr. Smith wanted Ms. McDonnell's assistance in finding out where Ms. Talton lived.

Both Mr. Hume and Mr. Smith testified Mr. Smith arrived at Mr. Hume's house around 10:30 a.m., accompanied by three other people. At that time, Mr. Smith told Ms. McDonnell either she or her girlfriend (i.e., Ms. Talton) "ripped off" his drugs the night before. He stated he wanted Ms. McDonnell to take him over to Ms. Talton's house so he could talk to her because he did not think she, Ms. McDonnell, had taken the drugs. Ms. McDonnell agreed and voluntarily left her house with Mr. Smith and his companions.

When they arrived at Ms. Talton's house, she was on the couch, and she told them to come inside. Mr. Smith went in and spoke with Ms. Talton for a few minutes about the missing cannabinol while the others waited outside. Ms. Talton told Mr. Smith he had probably lost or misplaced the cannabinol at his house, and she suggested they go back to his house to look for it. Mr. Smith agreed, and they all went back to his house to look for the drugs. Ms. Donham's testimony confirmed this sequence of events.

While Mr. Smith was looking in his kitchen for the missing drugs, Ms. Talton came in with a bag containing about half a gram of cannabinol, proclaiming to have found the missing drugs. Mr. Smith, however, did not believe her and he accused her of having had the drugs all along. When he asked her where the other half a gram was, Ms. McDonnell stepped in and agreed to reimburse Mr. Smith for the missing half gram of cannabinol, which was worth approximately $50. Mr. Smith then took the remaining half gram and put it with the rest of his stash. 7

Ms. Donham testified they all got back in Mr. Smith's van at around 11:30 that morning, which was the last time she saw Ms. Talton and Ms. McDonnell with Mr. Smith. Mr. Smith then dropped Ms. Donham off at her home. 8 Half an hour later, Messrs. Smith and Bylsma showed up at Ms. Donham's house for lunch, where they stayed until around 2:00 in the afternoon, at which time Mr. Smith, Ms. Donham, Mr. Bylsma, and April went to Kenneth LaDue's house. Mr. LaDue had sold Mr. Smith a 1950 purple Ford pickup truck, which had been impounded; however, the paperwork had never been transfered properly to Mr. Smith's name. Thus, before he could get his truck from Broadway Towing, where it was impounded, he needed to see Mr. LaDue.

Ms. Donham testified she spent the rest of Tuesday with Mr. Smith. Several other witnesses provided a detailed account of Mr. Smith's whereabouts on Tuesday, the day the prosecution claimed the murders were committed. From 2:30 until around 5:00 p.m., these witnesses stated Mr. Smith was either with Mr. LaDue or he was at Broadway Towing, trying to get his truck out of the impoundment lot. Finally, Ms. Donham testified Mr. Smith stayed at her house 9 for the remainder of the work week. She testified in some detail about what occurred on those days, and she indicated she never heard Mr. Smith leave the house during the night as she was a light sleeper and would have heard him moving around. Mr. Smith's employer Bill Gourly also provided Mr. Smith an alibi for the rest of the week as he testified Mr. Smith was at work during those days.

Randy Appert and his roommate Ralph Strom testified that around this time, Mr. Smith had come to consider their apartment as his own and he had his own key. Mr. Appert testified Mr. Smith came by the house on Saturday, August 13, and asked him if he could leave his gun at their house. Mr. Appert told him he did not know. Apparently, Mr. Smith left the gun there anyway because Mr. Appert testified the next time he saw the gun was when the police removed it from a closet in their house pursuant to a search warrant. Mr. Strom testified he did not know Mr. Smith had left the gun at their apartment either.

Nikki Thompson testified she was at the home of Messrs. Strom and Appert that Saturday morning when Mr. Smith showed up with a gun, similar in size to Exhibit 44, Mr. Smith's shotgun, in his hands in plain view. She further testified on direct examination she overheard a conversation between Messrs. Strom and Smith. She testified she heard Mr. Smith say something like "he had been burned and the people had been punished," although she denied ever hearing Mr. Smith say he had recently used the gun. During an evidentiary hearing several years later, however, Ms. Thompson, then using her marital...

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