U.S. v. Agurs, s. 72--2072

• Decision Date: 03 April 1975
• Docket Number: Nos. 72--2072,73--1956 and 74--1542,s. 72--2072
• Citation: 167 U.S.App.D.C. 28,510 F.2d 1249
• Parties: UNITED STATES of America v. Linds AGURS, Appellant. UNITED STATES of America v. Linda V. AGURS, Appellant (two cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1249

510 F.2d 1249

167 U.S.App.D.C. 28

UNITED STATES of America v. Linds AGURS, Appellant.

UNITED STATES of America v. Linda V. AGURS, Appellant (two cases).

Nos. 72--2072, 73--1956 and 74--1542.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 25, 1974.

Decided April 3, 1975.

Cornish F. Hitchcock, ^* with whom Sherman L. Cohn, Wshington, D.C. (appointed by this Court), and Steven M. Pavsner, ^* were on the brief, for appellant. Edwin J. Bradley, Washington, D.C. (appointed by this Court), also entered an appearance for appellant.

Gerard F. Treanor, Jr., Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., John A. Terry and James F. McMullin, Asst. U.S. Attys., were on the brief for appellee. Harold H. Titus, Jr., U.S. Atty. at the time the record was filed and John O'B Clarke, Jr., Asst. U.S. Atty., also entered appearances for appellee in No. 72--2072.

Before BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, and JUSTICE, ^** United States District Judge for the Eastern District of Texas.

Opinion for the Court filed by District Judge JUSTICE.

JUSTICE, District Judge:

The appellant, Linda Agurs, appeals from her conviction for second-degree murder, ¹ for which she was sentenced to a term of five to twenty years' imprisonment. Apart from the issue of self-defense, there was little disagreement between the parties at trial with respect to the facts.

James T. Sewell met his estranged wife for lunch on September 24, 1971. They had planned to travel to New York together that evening, but quarreled during their meeting and parted. Mrs. Sewell testified that her husband boarded a bus at about 2:45 in the afternoon, and that he was carrying about $360.00 in his pocket.

Sewell and the appellant arrived together at a motel in Northwest Washington about 4:30 on the same afternoon. A motel employee testified that he observed that Sewell was wearing a Bowie knife in a sheath. The two registered as man and wife and departed the lobby for their room. Approximately a quarter hour later, the desk clerk and two other employees heard a woman's screams emanating from the room occupied by Sewell and the appellant. They forced their way into the room and discovered the two on the bed struggling with a knife--a Bowie knife, as it was later ascertained. The employees separated them and summoned an ambulance for Sewell, who was bleeding. Appellant left the building at the time, but surrendered voluntarily to the police the next day. In the meantime, Sewell died from stab wounds inflicted during the struggle. The most serious wounds were in Sewell's chest and abdomen, but his arms and hands also exhibited cuts and slashes suggesting an attempt to repel an attack.

The appellant was indicted for second-degree murder. At the trial, it was the theory of the prosecution that the appellant was a prostitute whom Sewell had encountered in the course of the afternoon, and that she brought him to the motel in the course of plying her trade. On this theory, the appellant, dissatisfied with the amount Sewell paid her for her services, rummaged through his clothing while he was in a bathroom down a hall from their room and removed the money she found there. Sewell, returning, caught her in the act and attempted to retrieve his money, whereupon she stabbed him with the knife, which also lay among his clothes. In support of this scenario, the prosecution cited testimony that a motel employee had seen the appellant check into the motel with men on other occasions. In addition, the witnesses to the struggle agreed that the appellant was fully dressed but that Sewell was clad only in his trousers, and that the knife was pointed at his chest during the part of the struggle that they observed. There was money neither in Sewell's wallet, which was found in the motel room after the incident, nor in his pockets, which were searched at the morgue. Finally, the prosecution stressed the testimony of the nurse who examined the appellant the day after the incident; she found no cuts or wounds on any parts of the appellant's body.

Appellant's attorney advanced the contention that she had inflicted the stab wounds in self-defense. He elicited testimony from the motel's desk clerk to the effect that Mrs. Sewell had appeared at the motel after the incident and told him that Sewell 'would use a knife.' Mrs. Sewell denied having made the statement. Counsel for appellant also noted the presence of a pocket knife in Sewell's pocket when he was taken to the morgue, emphasized the uncontradicted evidence that Sewell had the Bowie knife at the time the pair checked in, and developed from one of the witnesses testimony that Sewell lay atop the appellant during the struggle.

Defense counsel had become aware, during pretrial interviews with witnesses, of the possibility that Sewell might have been arrested or convicted in the past for violent crimes. Before investigating Sewell's arrest and conviction record, however, he asked the appellant whether she knew of any violent episodes in Sewell's past; she knew of none. The attorney believed that a decedent's prior convictions for violent crimes were inadmissible to prove self-defense unless the person accused of the homicide knew of them. To reassure himself, he consulted an older lawyer who had some experience with criminal law; the older lawyer advised him that this view of the law was correct. He thus concluded that a search for Sewell's prior record would be a waste of time. Counsel also believed, he testified later, that the prosecution would advise him if they knew that Sewell had a criminal record. In any event, none of the evidence presented to the jury at trial suggested that Sewell had ever been arrested for or convicted of a crime of violence.

A month after the appellant was sentenced, defense counsel received a copy of this court's opinion in United States v. Burks. ² The Burks opinion noted that this court has 'long recognized' that evidence of past violent acts by a deceased is admissible in a homicide case in which the issue of self-defense is raised because '(s)uch evidence is relevant on the issue of who was the aggressor. . . .' ³ A footnote to that observation admonished that '(i)t bears emphasis . . . that as to the issue of who was the aggressor it is irrelevant that the defendant did not know about the deceased's character.' ⁴ On learning of this long-recognized rule, of which he had been entirely ignorant, counsel became alarmed and immediately sought to discover whether or not Sewell did, in fact, have a criminal record. He went to the United States Attorney's office and, finding the Assistant who had prosecuted the appellant absent, spoke with one of the other Assistants. The Assistant took appellant's counsel to a 'closed files' room and located the file concerning the prosecution of the appellant. There, close to the front of the folder, they found a paper disclosing that Sewell had been convicted in 1963 for assault and carrying a dangerous weapon and in 1971 for carrying a dangerous weapon. The weapon, in each instance, had been a knife.

Defense counsel immediately filed a motion for new trial on the ground of newly discovered evidence. The trial judge denied the motion, expressing skepticism that 'a CDW conviction and a '63 ADW conviction' would have made any difference in the jury's conclusions. Being convinced that his misunderstanding of the law had seriously prejudiced the appellant's plea of self-defense, her counsel later requested to withdraw, in order that the issue of his ineffectiveness could be raised by appellant's attorney on appeal.

Appellant asserts that her conviction should be reversed on three grounds. First, she contends that the trial judge erred in denying her motion for new trial. Second, she urges that her defense counsel's failure to bring Sewell's record of convictions before the jury deprived her of her sixth amendment right to the effective assistance of counsel. Finally, she argues that the prosecution denied her due process of law under the doctrine of Brady v. Maryland, ⁵ which prohibits 'suppression by the prosecution of evidence favorable to an accused.' ⁶

It is unquestioned that a prosecutor's deliberate failure to supply defense counsel with information that tends to exculpate the accused constitutes prosecutorial misconduct meriting reversal of a conviction. ⁷ neither party to this appeal has any quarrel with this principle. Nor can there now be any disagreement with the rule of Brady that 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' ⁸ Appellee's first response is that the prosecution was not required to inform appellant's attorney of Sewell's record in the absence of a request for such information, and second, that the information was in any event for such small importance in the context of the case that failure to reveal it had no effect on the verdict of the jury. ⁹

At the outset, it should be observed that defense counsel's attempts to request relevant information from the United States Attorney can not categorically be characterized as lacking in diligence. The record reveals that the attorney for appellant appeared at a calendar call shortly after he had been appointed to represent her and indicated that he wished to place a stipulation regarding discovery on the record. The attorneys had encountered no difficulties in agreeing upon discovery procedures and the scope of discovery up to that point; and the trial judge, therefore, suggested to defense counsel that he return to court for formal discovery proceedings only in the event that he experienced difficulty in obtaining the materials that he desired from the office of the United States Attorney. Further, the trial judge commented that, in his experience, the...