Williams v. Com.

• Citation: 569 S.W.2d 139
• Parties: Charles Ervin WILLIAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 13 June 1978
• Court: United States State Supreme Court (Kentucky)

Page 139

569 S.W.2d 139

Charles Ervin WILLIAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

June 13, 1978.

Richard Louis Receveur, Asst. Public Defender, Louisville, for appellant.

Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appellee.

CLAYTON, Justice.

On April 5, 1977, Charles Ervin Williams was convicted for the armed robbery of a Louisville restaurant and the murder of one of its patrons, receiving the maximum life sentence for each crime. ¹ He now appeals, presenting four questions for our consideration. Of these, the only one which requires extensive discussion is whether the Commonwealth's Attorney's failure to provide the defense with information supportive of its claim that the prosecution obtained vacation of a conviction against its key witness in exchange for his testimony, deprived Charles of a fair trial. We believe that it did.

I

During the early morning hours of December 20, 1974, around 12:45, a dark-skinned man wearing a brightly colored ski mask and brandishing a 9mm automatic pistol entered Cooksey's Grill in Louisville and commanded the manager and seven customers therein to lie face down on the floor. As Mike Morris rose from his chair to do so, the masked man shot him through the heart, killing him instantly. He then ordered Wanda Puckett, the manager, to open the cash register; after removing most of the money inside, he searched the pockets of both Morris and his tablemate, Barry Dorsey, and fled out the door. Two piles of loose change were later discovered in an alley behind Cooksey's, one pile only 50 feet from the restaurant, the other behind a house at 1840 West Hill Street, just a few blocks from Charles' residence at 2127 West Hill. The gun used in the robbery and murder was never found.

Because of the disguise which he had worn, none of the eyewitnesses were able to give a detailed description of the assailant when interviewed following the incident. All agreed that he was a brown-skinned male and that he was attired in a dark jacket and trousers. Delores Carter, who had obtained perhaps the best view of the masked man, ² said she was positive that he had blue eyes and estimated him to be 5 feet 5 inches in height. Other witnesses reported that he had gray or green eyes and guessed him to be from 5 feet 8 inches to 6 feet 2 inches tall. Charles has brown eyes and is exactly 6 feet in height.

Although he too had been unable on the morning of the 20th to identify the assailant, it later dawned on Barry Dorsey that the individual who had committed the crimes at Cooksey's was one and the same person as a black male who had purchased cigarettes the evening of the 19th at the nearby gas station where Dorsey was employed. Approximately one week after this revelation struck him, Dorsey identified Charles from a group of police photographs as being that man. On December 29 Charles was asked, and he consented, to participate in a lineup before all of the witnesses to the robbery and murder. After viewing Charles and five other black males, first with and then without ski masks on, none of the other eyewitnesses recognized the assailant among the men. Dorsey again identified Charles; as a result, Charles was arrested later that afternoon.

While Dorsey's identification of Charles was certainly important to the Commonwealth's case, the key prosecution witness at trial, and the one around whose testimony the controversy in this case centers, was Myer Pettyjohn. Charles was originally tried on September 28, 1976. At that trial, Pettyjohn initially testified that he knew absolutely nothing about the incident at Cooksey's and that he had never seen Charles before in his life. After a brief recess during which time Pettyjohn conferred with an official from the state Department of Corrections, however, Pettyjohn recanted his previous statements and gave testimony incriminating Charles as the perpetrator of the robbery and murder at Cooksey's.

According to this new testimony, on the morning of December 20, 1974, Pettyjohn had, despite the fact that he was on parole from a robbery conviction and was not supposed to be in Jefferson County, driven to Cooksey's in search of his friend Mike Morris. While sitting in his car across from the restaurant, Pettyjohn heard a gunshot, then saw a black male run out of the building with a gun in one hand and a ski mask in the other. Although he had no idea at that time who the man was, on January 28, 1975, Pettyjohn was placed in the Jefferson County jail after violating the conditions of his parole he had been arrested in connection with yet another robbery where he not only recognized Charles as the man he had seen at Cooksey's, but was actually told by Charles that he had committed the crimes. When asked on cross-examination why he had changed his testimony after the recess, Pettyjohn responded that he had been afraid to testify against Charles until promised by the Corrections official that the two would be placed in different prisons if Charles should be convicted. Charles presented an alibi defense which was corroborated by several members of his family. Apparently unsure of whom or what to believe, the jury was unable to reach a verdict.

Charles was retried on April 5, 1977. Following a reiteration by Pettyjohn on direct examination of his "post-recess" testimony from the former trial, a Cotton hearing ³ was held to determine whether Pettyjohn had ever been convicted of any felonies which might reflect adversely on his credibility as a witness. There, Pettyjohn admitted that he had been convicted of robbery on three occasions, but stated that the most recent conviction had been vacated after Charles' first trial and that the charge was again pending. ⁴ Upon learning this, defense counsel asked the trial court if he could question Pettyjohn about the vacation and the circumstances surrounding it when they returned to the courtroom; reasoning that a conviction which has been vacated is no longer admissible for Cotton purposes, the trial court ruled that he could not. When the trial resumed, defense counsel did his best on cross-examination to discredit Pettyjohn's testimony, pointing out the two earlier robbery convictions, exposing his "pre-recess" testimony from the prior trial, and, without mentioning the vacation, implying the existence of a deal with the prosecution:

Q. And you know about people trying to make deals, don't you?

A. What kind of deals are you talking about?

Q. I'm talking about giving testimony against somebody for a little slack on these charges that you may have against you.

A. No, I don't know

Q. You haven't heard anything about that?

A. What are you talking about, on TV, real life, or what?

Q. Real life.

A. I guess it happens.

Q. You came in that door didn't you? You're on the outside now.

On redirect examination by the Commonwealth's Attorney, however, Pettyjohn categorically denied having ever received any promises of leniency in exchange for his testimony.

Some five weeks after Charles' conviction, defense counsel filed a motion for new trial alleging (1) that he had since trial discovered evidence supportive of the defense's contention that Pettyjohn had been promised favorable treatment in exchange for his testimony against Charles and therefore possessed a motive to lie; and (2) that the Commonwealth's Attorney had failed to disclose this evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. At a hearing on the motion, it was revealed that while incarcerated following his arrest in January of 1975 for robbery, Pettyjohn had written several letters to his fiancee in which he referred to using his knowledge of the incident at Cooksey's and other crimes as a "trick" for obtaining release from prison, and stated he would only divulge this information to the authorities if they would "help get the hold off." When questioned about these remarks, Pettyjohn admitted he had hoped to gain his freedom by testifying against Charles, but again denied that any promises had actually been made or that his testimony had been fabricated. It was further revealed that when Pettyjohn's robbery conviction was in fact vacated after Charles' first trial, the order authorizing the vacation had been sent to the prosecutor in Charles' case, Commonwealth's Attorney Zollinger, for his approval, despite the fact that he was in no way involved in the prosecution of Pettyjohn. Zollinger admitted during the hearing he had recommended that the conviction be vacated, but like Pettyjohn denied the existence of a deal. On June 24, 1977, the motion for new trial was denied. This appeal followed.

II

In determining whether the court below acted properly in denying Charles' motion for new trial, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) requires that we distinguish between two types of cases, each involving the discovery after trial of exculpatory evidence known to the prosecution but unknown to, and for that reason not specifically requested by, ⁵ the defense: those which might be called "perjury" cases, and those which might be called "discovery" cases. See United States v. Sutton, 542 F.2d 1239 (4th Cir. 1976).

The hallmark of a "perjury" case, perhaps the most obvious example of which is Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1975), is an allegation by the defense that the undisclosed evidence reveals the presence of perjured testimony in the government's case. In Giglio, the key prosecution witness, himself a potential indictee, testified at trial that he had received no promises of non-prosecution in exchange for his testimony implicating the defendant; after trial, the government admitted that such a promise had been made. Noting that the testimony of that witness was so vital to the success of the government's case that the issue of his reliability may...