Thomas v. Cardwell
| Decision Date | 02 January 1980 |
| Docket Number | No. 77-2991,77-2991 |
| Citation | 626 F.2d 1375 |
| Parties | 7 Fed. R. Evid. Serv. 1209 Donnell THOMAS, Plaintiff-Appellant, v. Harold CARDWELL, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert J. Hirsh, Hirsh & Shiner, Tucson, Ariz., for plaintiff-appellant.
Stanley Patchell, Atty. Gen., Phoenix, Ariz., argued, for defendant-appellee; Bruce E. Babbitt, Phoenix, Ariz., on brief.
Appeal from the United States District Court, District of Arizona.
Before BARNES and HUG, Circuit Judges, and CURTIS, District Judge. **
This is an appeal from the district court's denial of appellant's habeas corpus petition 1 seeking relief from his Arizona state court conviction for the first degree murder of Mason Branch. Background information and details surrounding the crime itself are summarized in two reported cases and, for purposes of economy, will not be duplicated here. 2
Appellant has raised many challenges as to the State's conduct in prosecuting his case and as to several of the trial judge's rulings. Basically, these objections fall into three groups:
First, appellant alleges that the prosecution had arranged a deal with one key witness, Gilbert Alzua, and failed to disclose that material information both prior to and during the trial. Appellant asserts in support of this issue that at his trial: 1) the prosecutor knowingly or negligently solicited false testimony from Alzua in the form of the latter's denial of the existence of any deal; 2) the prosecutor improperly inhibited appellant's cross-examination of Alzua as to the alleged deal; and 3) the trial judge erroneously refused to admit relevant documentary evidence impeaching Alzua's testimony on that issue.
Second, appellant claims that the admission into evidence of prior testimony of a second key witness, Lucias Sorrell, deprived the appellant of his sixth amendment right of confrontation. In addition, appellant challenges the manner in which the prosecution was permitted to conduct its examination of Sorrell.
Third, appellant contends that the prosecution deprived him of a fair trial by its constant proffering of inadmissible evidence and continual interjecting of groundless objections.
After his arrest, appellant was incarcerated at the Pima County Jail in Arizona pending trial. Also held there at that time was Gilbert Alzua, who was facing an Arizona state embezzlement charge. 3 In addition, Alzua was subject to possible prosecution for aggravated burglary in the Louisiana state courts and for Dyer Act violations 4 in the Louisiana federal courts.
On or about December 15, 1969, Alzua informed police officials that appellant had admitted to him that he had shot Mason Branch in the course of a liquor store robbery. On December 17, 1969, Alzua's preliminary hearing was continued indefinitely subject to call by stipulation of either the State or Alzua's attorney. 5 Deputy County Attorney John Neubauer was in charge of the embezzlement prosecution against Alzua. Horton Weiss was the state prosecutor in appellant's murder case. On February 9, 1970, Alzua was released from jail on his own recognizance. 6
On April 7, 1970, at a preliminary hearing conducted in appellant's case, Alzua's attorney, Ronald Sommer, testified as to the existence of a deal with the County Attorney's Office in connection with Alzua's appearance as a witness for the prosecution at appellant's trial. 7 Sommer stated that the deal was agreed to by both Weiss 8 and Neubauer. 9 Also at that hearing, Neubauer was called as a witness and he denied having reached any firm agreement with Alzua or Sommer 10, although he did admit that he had indicated that the County Attorney's Office was willing to report to whomever Alzua's attorney requested that Alzua had in fact testified. 11
On April 21 and 22, 1970, Alzua testified as a prosecution witness at appellant's trial. He stated that while in the Pima County Jail he had discussed the robbery and murder with David Williams, one of appellant's alleged accomplices. Supposedly, Williams told Alzua that appellant had killed Mason Branch during the robbery. Later, on December 3, 1979, Alzua first met the appellant during church services. During that service, Alzua asked appellant if what Williams had told him was true. Appellant purportedly replied "That's the way it came down." 12
On cross examination, Alzua admitted that he had been convicted of a felony on three previous occasions and that he was currently facing an embezzlement charge in Arizona and other charges in federal court. When asked if the Arizona embezzlement proceedings had been continued indefinitely "for consideration of your testimony here today", Alzua responded: "I don't know for giving testimony, but they are continued indefinitely." 13 Alzua initially stated that he had been released on payment of a bond in the embezzlement case, but later testified that he wasn't sure and that he might have been released on his own recognizance. Alzua also admitted that he asked his attorney, Sommer, to attempt to collect a reward in connection with the appellant's case. However, Alzua consistently denied the existence of a deal whereby, in exchange for his testimony, the State would drop the embezzlement charge and would specifically inform the federal authorities in Louisiana that he had cooperated in appellant's case. 14 Alzua also denied that Sommer had told him of the existence of a deal with the State.
On redirect, Weiss asked Alzua if anyone from the County Attorney's Office had made any promise to him or if he had received anything in consideration for his testifying. Alzua responded in the negative to both questions.
Later at the trial, Sommer testified that he had indeed informed Alzua of the deal which he had arranged with the County Attorney's Office and had shown him a letter dated January 21, 1970, summarizing its terms. According to Sommer, the State had agreed to release Alzua on his own recognizance, to dismiss the embezzlement charge whenever asked to do so by Sommer, and to attempt to intervene with the federal authorities in Louisiana on Alzua's behalf. Sommer stated that he had discussed the terms of the deal with both Neubauer and Weiss. 15
Finally, at the trial, another witness, Marie Henry, testified that she had encountered Alzua during appellant's preliminary hearing. At that time, Alzua purportedly admitted to her that everything he had said on the witness stand as to his conversation with the appellant was a lie.
Whether the embezzlement charge against Alzua was ever formally dropped is unclear from the record below. However, at appellant's evidentiary hearing on his habeas petition, it was noted that some unidentified person had written on the cover of Neubauer's file for the embezzlement case that the charge against Alzua had been dismissed and gave as the reason "used as witness in Div. 4 case A-17852". 16 "A-17852" was the case number of appellant's trial. As to the federal charges against Alzua, they were dismissed on September 15, 1970 by the U. S. Attorney's Office in New Orleans. In the Order of Dismissal, as one of the justifications for that action, it is noted that "defendant had given invaluable information leading to the convictions of hard-core felons in both state and federal jurisdictions." 17 For reasons not apparent in the record, no charges against Alzua were ever filed by Louisiana state authorities.
Since the Supreme Court's decision in Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935), it has been consistently held that a deliberate deception of a court and jurors through the presentation by the prosecution of known false evidence is incompatible with "the rudimentary demands of justice". That principle applies when the tainted evidence goes only to the credibility of the witness. As noted by the Court in Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959):
The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend.
Likewise, the principle applies when the prosecutor's case includes perjured testimony and the prosecution should have known of the perjury. United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976). For example, a new trial is required when a witness, who has received a promise of leniency in exchange for his testimony, testifies to the contrary and the prosecuting attorney fails to correct that misinformation even though the promise was made unbeknownst to him by another attorney in the prosecutor's office. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). 18
In addition, there may also arise a Brady v. Maryland 19 problem as to the state's suppression of material evidence, i. e. the existence of a deal with the state which goes to the witness's credibility. Agurs, supra, 427 U.S. at 103-04, 96 S.Ct. at 2397; Giglio, supra, 405 U.S. at 153-54, 92 S.Ct. at 765-766. As this circuit has stated: "It is well established that the prosecutor has a duty to disclose any promises of leniency made to a witness testifying at trial since any such agreement is relevant to his or her credibility." United States v. Ramirez, 608 F.2d 1261, 1266 (9th Cir. 1979). Such suppression or non-disclosure could justify a new trial "irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963).
However, a new trial is not necessarily automatic merely because tainted evidence has been presented by the prosecution. As noted by the Court in Giglio, supra, 405 U.S. at 154, 92 S.Ct....
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