White v. Maggio

• Decision Date: 08 August 1977
• Docket Number: No. 76-2012,76-2012
• Citation: 556 F.2d 1352
• Parties: Gregory WHITE, Petitioner-Appellee, v. Ross MAGGIO, Warden, Louisiana State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1352

556 F.2d 1352

Gregory WHITE, Petitioner-Appellee, v. Ross MAGGIO, Warden, Louisiana State Penitentiary,

Respondent-Appellant.

No. 76-2012.

United States Court of Appeals, Fifth Circuit.

Aug. 8, 1977.

Rehearing Denied Aug. 31, 1977.

William L. Brockman, Asst. Dist. Atty., Harry F. Connick, Dist. Atty., New Orleans, La., for respondent-appellant.

Patricia Saik, New Orleans, La. (Court-appointed), for petitioner-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, CLARK and RONEY, Circuit Judges.

WISDOM, Circuit Judge.

The appellant, Ross Maggio, Acting Warden of the Louisiana State Penitentiary, urges reversal of the grant of a writ of habeas corpus. The district court issued the writ because the State refused to produce certain tangible evidence for pretrial inspection by the defense, as required by the due process clause on the strength of Barnard v. Henderson, 5 Cir. 1975, 514 F.2d 744. The district court granted the writ to Gregory White, who was convicted of second degree murder by a Louisiana state court in 1974. On appeal the State argues that the district court incorrectly applied Barnard to the facts of this case. Because correct application of Barnard requires additional fact-finding, we remand the case for further proceedings.

I.

Gregory White allegedly murdered Willie Green on March 24, 1974, a short time after the men had argued over Green's association with Debra Williams, a former friend of White. The undisputed evidence showed that White and a friend, Calvin Adams, came to Green's apartment on Toledo Street in New Orleans on the night of the murder and asked Williams to leave the premises. She refused, and an argument ensued between Green and White in the hallway outside the apartment. Green objected to White's brandishing a gun. White then fired three shots from the gun into the door of the apartment, but no one was injured.

After White and Adams departed, Green and Norwood Jackson, a friend who had been in the apartment during the argument and shooting, went to two bars. Jackson testified that they stayed in each only a few minutes, because the shooting had upset them. As they left the second bar, at the corner of Second and Danneel Streets, Jackson said, an automobile driven by Adams with White as a passenger stopped at the intersection. Jackson testified that as he walked out of the bar he saw White shake his head and point a gun at Green from the car. Two shots were fired. Jackson ducked. After the car sped away, he found Green on the sidewalk with a bullet hole in his forehead.

Jackson sent word of the second shooting to Williams. She called the police and led them to White's apartment. White's wife met the officers at the door and consented to a search of the premises. The police found White and a box of 38-40 magnum shells in a closet. After they placed him under arrest and notified him of his Miranda rights, he reportedly blurted out, "I threw the gun in the river". The police testified that they asked no questions.

Because the police did not produce the gun at trial, the only tangible evidence connecting White to the murder was the 38-40 pellet that struck Green in the head. The pathologist who performed an autopsy on the body retrieved the bullet and testified that it caused Green's death. Detective Robert Townsend, the senior examiner in the Firearms Identification Unit of the New Orleans Police Crime Laboratory, then told the jury that the 38-40 pellet bore the same markings as a 38-40 pellet that White had fired through the door of Green's apartment. Townsend concluded that the two bullets were fired from the same gun. He stated that no other expert could disagree with this conclusion.

The defense could not challenge Townsend's testimony by offering its own expert, because the trial court had denied two pre-trial requests for access to the pellets. The defense counsel did not renew the request at trial and offered no testimony about the theoretical possibility of disagreement among experts regarding bullet comparisons. Rather than producing other evidence, the defense rested on the legal presumption of White's innocence.

On appeal of the conviction to the Louisiana Supreme Court, White argued that the refusal to permit his examination of the bullets denied him a fair trial and due process of law. That Court, in a divided opinion, State v. White, La.1975, 321 So.2d 491, affirmed the conviction, though the trial court had based its refusal to permit discovery on State v. Barnard, La.1973, 287 So.2d 770, the case in which this Court later set aside Barnard's conviction in Barnard v. Henderson. ¹

The district court granted White's petition for a writ of habeas corpus on the recommendation of a magistrate who reviewed the trial court record but did not conduct a hearing on the petition. The magistrate concluded, "whether or not the bullets were introduced into evidence by the State, it was error to deny White's motion to examine them and afford him the opportunity to present evidence that may have been favorable to him".

II.

This Court granted a writ of habeas corpus to a Louisiana prisoner in Barnard v. Henderson, because the State's refusal to permit the defense to examine tangible evidence before trial violated fundamental fairness. Barnard was convicted of murdering Rex Emile Lanier on the morning after the men had argued about the ownership of Lanier's automobile. A witness to the argument heard Barnard threaten to kill Lanier, but no one witnessed the murder. Before trial the defense moved for inspection of a gun that had been traced to Barnard's possession and of the bullet that killed Lanier. The trial court refused, holding that in Louisiana pre-trial discovery in criminal cases was limited to the defendant's confessions and narcotics. The gun and bullet did not qualify for discovery under Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, according to the Louisiana Supreme Court, because the defense did not prove that the evidence would have been favorable to Barnard. This Court concluded, however, that the state had deprived Barnard of due process of law by denying him the means necessary to conduct his defense:

(F)undamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion.

514 F.2d at 746.

Barnard was not announced until after the conviction of White in the Louisiana trial court. Whether this rule of due process should apply here presents the question whether Barnard applies retroactively. ²

The criteria controlling resolution of the question include the purpose to be served by the new standard, the extent of reliance by law enforcement authorities on the old standard, and the effect on the administration of justice of a retroactive application of the new standard. Michigan v. Payne, 1973, 412 U.S. 47, 51, 93 S.Ct. 1966, 36 L.Ed.2d 736; Stovall v. Denno, 1967, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199; see Linkletter v. Walker, 1965, 381 U.S. 618, 636, 85 S.Ct. 1731, 14 L.Ed.2d 601. Generally, retroactive application of law-changing decisions is recognized when the purpose of the change is "to correct serious flaws in the fact-finding process at trial". Stovall v. Denno, 1967, 388 U.S. 293, 298, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199; Blackburn v. Cross, 5 Cir. 1975, 510 F.2d 1014, 1018, rehearing denied, 517 F.2d 464; see, e. g., Roberts v. Russell, 1968, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, rehearing denied, 393 U.S. 899, 89 S.Ct. 73, 21 L.Ed.2d 191; Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. ³ Consideration of the purpose of the rule dominates the application of the three-pronged test. Desist v. United States, 1969, 394 U.S. 244, 249, 89 S.Ct. 1030, 22 L.Ed.2d 248, quoted in Blackburn v. Cross, 5 Cir. 1975, 510 F.2d 1014, 1018. The two other factors of the test have substantial influence only when the purpose of the new rule does not clearly favor either retroactivity or prospectivity. 394 U.S. at 251, 89 S.Ct. 1030; 510 F.2d at 1018.

In this case the new procedural rule clearly favors retroactivity because it protects the accuracy of the fact-finding process at trial. As Justice Barham explained in his dissent to the Louisiana Supreme Court decision in State v. Barnard, La.1973, 287 So.2d 770, 778, "the only means by which the defendant can defend against expert testimony by the State is to offer expert testimony of his own". By denying White access to the bullets, the State deprived him of any opportunity to test the validity of the conclusion of the prosecution's ballistics expert. Perhaps the denial prevented him from discovering important exculpatory evidence. Effective confrontation and cross-examination of the expert was denied. And the jury received solely the State's interpretation of the only tangible evidence that connected the defendant to the murder. These are serious flaws in the fact-finding process flaws the procedural rule of Barnard would correct. Consequently, the purpose of the new rule strongly favors its retroactive application.

The reliance of state authorities on restricted discovery and the effect of retroactive application of Barnard on the administration of justice do not persuasively support prospective application of the case. First, even though Louisiana has consistently limited discovery in criminal cases, ⁴ its criminal justice system does not appear to rely heavily on the restriction. For example, exceptions to the rule are granted regarding confessions of defendants. State v. Barnard, La.1973, 287 So.2d 770; State v. Hall, 1969, 253 La. 425, 218 So.2d 320; State v. Dorsey, 1945, 207 La. 928, 22 So.2d 273. In drug cases the defense may inspect seized narcotics,...