Donnell Thomas, Plaintiff-appellant, v. Harold Cardwell, Defendant-appellee, 626 F.2d 1375 (9th Cir. 1980)

This is an appeal from the district court's denial of appellant's habeas corpus petition¹  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 violations⁴  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 Weiss⁸  and Neubauer.⁹  Also at that hearing, Neubauer was called as a witness and he denied having reached any firm agreement with Alzua or Sommer¹⁰ , 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. Maryland¹⁹  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. at 766:

A new trial is required if "the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury . . . ." Napue, supra, (360 U.S.) at 271 (79 S. Ct. at 1178).

A similar showing must be made under the Brady test when material evidence is suppressed. Agurs, supra, 427 U.S. at 103, 96 S. Ct. at 2397; Lewis v. Cardwell, 609 F.2d 926, 928 (9th Cir. 1979); Flores v. Craven, 503 F.2d 1030, 1031 (9th Cir. 1974), cert. denied, 420 U.S. 911, 95 S. Ct. 833, 42 L. Ed. 2d 842 (1975).

This case presents a somewhat unique variation of the above problems. First, there continues to be a dispute as to whether there was in fact a deal or arrangement between the County Attorney's Office and Alzua. The State's attorneys and Alzua have consistently declared that no deal was ever made while Alzua's attorney insists that there was. Second, that dispute surfaced prior to, or at least during, appellant's preliminary hearing.²⁰  Consequently, appellant's attorney was well aware before the trial that it was the State's position that it had no special arrangement with Alzua.²¹  The jury was made aware of the dispute through the defense counsel's questioning of the witnesses. Third, at the trial, Alzua's attorney did testify and described the deal which he had allegedly made with the County Attorney's Office and had reported to Alzua. Thus, the jury was presented with evidence which not only delineated the purported deal and its terms but also impeached Alzua's denial of the arrangement through the statements of his own attorney.

Assuming solely for purposes of this portion of the discussion that a deal was made between Alzua and the County Attorney's Office, the issue becomes whether there is a reasonable likelihood that the jury's judgment of Alzua's credibility could have been more adversely affected by his admission that he had an agreement with the State than by his attorney's testimony that a deal had been made and Alzua was informed of it, when that testimony was in direct conflict with Alzua's previous statements to the jury. See United States v. Butler, 567 F.2d 885, 890 (9th Cir. 1978); Flores, supra, 503 F.2d at 1031. We do not find it reasonably likely that the former situation (what appellant urges should have occurred) could have diminished Alzua's credibility with the jury any more than the latter situation (what actually did occur).

If, as urged by appellant, Alzua had admitted the existence of a deal and its terms, Alzua's incentive for testifying falsely would have been exposed to the jury. That factor could possibly influence the jury's estimation of his credibility but mainly by implication. Cf. Napue, supra, 360 U.S. at 269, 79 S. Ct. at 1177. In comparison, however, Alzua's credibility was more adversely affected by what actually occurred at the trial. Sommer, Alzua's attorney, took the stand and described the details of the alleged arrangement thereby presenting to the jury Alzua's purported self-interest in testifying for the prosecution. As importantly, Sommer's testimony directly contradicted Alzua's prior statements giving rise to the additional inference that Alzua had testified falsely. Given the fact that Sommer had no direct interest in appellant's case and indeed was testifying against his own client's interest,²²  Sommer's evidence would be accorded significant weight by the jury. Thus, at appellant's trial, not only was Alzua's possible self-interest exposed to the jury, but his testimony was impeached by his own attorney.²³  We therefore find what actually transpired at the trial to be more adverse to Alzua's credibility than the scenario which appellant urges should have taken place. A reversal of appellant's conviction is not required on these grounds.²⁴ 

Additionally, appellant contends that he was denied a fair hearing because he was unduly limited in his cross-examination of Alzua by the trial judge and because the judge refused to admit into evidence the clerk's record of the state embezzlement proceedings against Alzua.²⁵  Appellant's initial argument rests on the judge's sustaining the prosecution's objections as to four questions addressed to Alzua by appellant's attorney. After a review of the exclusion of those questions, we find the judge's rulings were either correct or not sufficiently significant so as to constitute a denial of appellant's right to effective cross-examination.²⁶ 

As for the refusal to admit the record of the embezzlement proceedings, the principal evidentiary value of that document was to show that Alzua had been released on his own recognizance and that his case had been continued subject to call by stipulation of the State of Alzua's counsel. The fact that the embezzlement proceeding had been continued indefinitely was established at trial by the uncontroverted testimony of both Alzua²⁷  and Sommer.²⁸  Alzua's release on his own recognizance was established partly by the testimony of Alzua himself²⁹  but primarily by Sommer's testimony.³⁰  We agree with the Arizona Supreme Court on this issue that, while the record was admissible and should have been admitted into evidence, appellant was able to get that information before the jury. State of Arizona v. Thomas, 110 Ariz. 120, 515 P.2d 865, 873 (Sup.Ct.1973). Any error was cured by the admission of other evidence on the same facts. United States v. Hendrix, 549 F.2d 1225, 1231 n. 5 (9th Cir.), cert. denied, 434 U.S. 818, 98 S. Ct. 58, 54 L. Ed. 2d 74 (1977); United States v. Holley, 493 F.2d 581, 583-84 (9th Cir.), cert. denied, 419 U.S. 861, 95 S. Ct. 112, 42 L. Ed. 2d 96 (1974).

Lucius Sorrell was another key prosecution witness. Sorrell initially testified at a December 9, 1969 preliminary hearing in appellant's case and at appellant's first trial, on or about March 5, 1970, which ended in a hung jury. On both occasions he gave similar testimony which was adverse to the defense. Appellant's attorney at that time, Jerold Cartin, was present at both proceedings. Cartin had full opportunity and did cross-examine Sorrell.³¹  Cartin also represented appellant at his second trial which resulted in the jury verdict against him.

When called to testify at the second trial, Sorrell was recalcitrant, non-responsive and extremely disoriented. He claimed that he did not remember the events surrounding the crime, the appellant, or the other men allegedly involved in the robbery and murder. Nor could he recall ever having testified against the appellant. Sorrell did state that he was a heavy drug user and was currently residing in a state hospital.

After an extended but mostly fruitless direct and cross-examination of Sorrell, the judge excused the jury and interrogated Sorrell as to his condition and ability to remember relevant facts.³²  It was apparent by then that Sorrell was either mentally incapable of testifying as to the events to which he previously testified or was refusing to testify. Weiss, over appellant's timely objection, sought to introduce Sorrell's prior testimony at appellant's first trial, where Sorrell had testified extensively and was subject to cross-examination by Cartin. The judge permitted parts of the transcript of the first trial (including sections of both Sorrell's direct and cross-examination testimony) to be read to the jury. Appellant now argues that his right of confrontation under the sixth amendment has been violated.

This case is substantially similar to California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). In Green, a prosecution witness, Porter, had testified at a preliminary hearing as to the details of defendant's sale of marijuana to him. At the defendant's trial, Porter was markedly evasive and uncooperative on the stand. He claimed an inability to remember the actual events of the marijuana sale. At various points during his direct examination, the prosecution, frustrated in its attempts to adduce live testimony, read into the record excerpts from Porter's preliminary hearing testimony. The Supreme Court held that the admission of Porter's prior testimony did not violate the Confrontation Clause for two separate reasons. First, the Court found that the defendant had an effective opportunity for confronting the witness at the subsequent trial. As stated in Green :

. . . the Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories.

Id. 399 U.S. at 164, 90 S. Ct. at 1938. The second reason given by the Court was that Porter's prior testimony was given under circumstances which provided substantial compliance with the purposes behind the confrontation requirement, and the witness's inability to testify at the subsequent criminal trial was in no way the fault of the State. Id. at 166, 90 S. Ct. at 1939; see also Ohio v. Roberts, --- U.S. ----, ----, 100 S. Ct. 2531, 2537-39, 65 L. Ed. 2d --- (1980). The Court in Green stated:

We also think that Porter's preliminary hearing testimony was admissible as far as the Constitution is concerned wholly apart from the question of whether respondent had an effective opportunity for confrontation at the subsequent trial. For Porter's statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings. Under these circumstances, Porter's statement would, we think, have been admissible at trial even in Porter's absence if Porter had been actually unavailable, despite good-faith efforts of the State to produce him. That being the case, we do not think a different result should follow where the witness is actually produced.

Id. 399 U.S. at 165, 90 S. Ct. at 1938-1939.

The present case falls clearly within the ambit of the second Green rationale.³³  Sorrell's prior testimony which was utilized here was given at appellant's first trial under oath in front of a judge and accurately recorded by a court reporter. Appellant's attorney was present at the first trial and cross-examined Sorrell. Cartin also represented appellant at the second trial. Thus, there was substantial compliance with the confrontation requirement and sufficient "indicia of reliability" so that the jury in appellant's second trial was afforded a satisfactory basis for evaluating the truthfulness of Sorrell's prior testimony.³⁴  Roberts, supra, --- U.S. at ----, 100 S. Ct. at 2537; Mancusi v. Stubbs, 408 U.S. 204, 216, 92 S. Ct. 2308, 2314, 33 L. Ed. 2d 293 (1972).

In addition, appellant challenges the trial judge's ruling that Sorrell was a hostile witness, which thereby permitted the prosecution to use cross-examination type questions on its own witness. Initially, we note that the state trial judge's classification of Sorrell as a hostile witness and his ruling permitting the prosecution to utilize leading questions is a matter of state evidentiary law which is committed to the trial court's discretion. State of Arizona v. Rice, 116 Ariz. 182, 568 P.2d 1080, 1085 (Ariz.1977). Such a controversy ordinarily does not give rise to the federal constitutional question necessary for habeas corpus relief. Cf. Cronnon v. State of Alabama, 587 F.2d 246, 250 (5th Cir. 1978), cert. denied, 440 U.S. 974, 99 S. Ct. 1542, 59 L. Ed. 2d 792 (1979). Moreover, in this case, it is evident from the record that Sorrell's responses to the prosecution's questions were evasive, ambiguous and definitely in conflict with his prior statements in two previous court proceedings. The trial judge did not err in ruling that Sorrell was a hostile witness for purposes of the prosecution's examination of him. See generally Rice, supra, 568 P.2d at 1085; United States v. Karnes, 531 F.2d 214, 216-217 (4th Cir. 1976).

Likewise, appellant's objections based on the Supreme Court's decision in Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965), are also unfounded. In Douglas, under the guise of cross-examining an accomplice as a hostile witness, the prosecutor, over the defendant's objections and despite the accomplice's continuing refusal to answer, read in the presence of the jury the accomplice's purported confession which implicated the defendant. Conversely, in this case, after the trial judge found Sorrell to be a hostile witness, the prosecutor did ask a lengthy series of questions which were leading in nature but otherwise not objectionable. Those questions did incorporate much of Sorrell's testimony at appellant's first trial. Sorrell's answers at the second trial varied between non-responsive replies and claims of lack of memory with occasional lucid admissions. After appellant's attorney cross-examined Sorrell, the prosecution proffered Sorrell's prior testimony at the first trial into evidence, said testimony being largely duplicative of the material covered by the prosecution's leading questions at the second trial. We have previously found that prior testimony to have been properly admitted. Thus, the present case is distinguishable from Douglas. In Douglas the focus was on the total lack of cross-examination or other effective confrontation of the accomplice as to his alleged confession, id. 380 U.S. at 419-20, 85 S. Ct. at 1077; whereas in this case Sorrell was extensively cross-examined by appellant's attorney at the first trial from which Sorrell's prior testimony was taken. Further, any error in the manner of the prosecution's questioning of Sorrell at the second trial was harmless given the fact that the same evidence was incorporated into Sorrell's testimony at the first trial, and the latter was properly presented to the jury at the second trial.

III. Objections to the Prosecution's Trial Tactics

Appellant challenges the manner in which the prosecution conducted itself during the trial. Specifically, he charges the prosecution with: 1) making improper offers of evidence knowing the evidence to be inadmissible, and 2) continually objecting during the appellant's examination of the witnesses such that the appellant was prevented from developing any continuity on direct examinations and denied his right of confrontation on cross-examinations. As to the first challenged practice, we have reviewed the portions of the record cited to us by the appellant. The trial judge in those instances properly admitted some of the proffered evidence, sustained appellant's objections as to others, and the prosecution withdrew its offers as to the remaining material. Appellant does not contend that the judge committed any error in his evidentiary rulings and we find none. Therefore, we find the prosecution's strategy, if indeed there was one employed by Weiss, to be non-prejudicial and insufficient to give rise to habeas relief.

Insofar as the prosecution's frequent objections during appellant's questioning of witnesses, we do find Weiss's tactics to be overzealous and somewhat obnoxious in this regard. But obnoxious conduct on the part of a prosecutor does not by itself warrant habeas corpus relief. After reading the relevant portions of the record, we agree with the Arizona Supreme Court that there was no violation of appellant's right of confrontation and that the defense was not effectively prevented from presenting its case. Thomas, supra, 110 Ariz. 120, 515 P.2d at 877-79.

We do not find a violation of appellant's constitutional rights in the record of the state trial below. Thus, the judgment of the district court denying the petition for a writ of habeas corpus is AFFIRMED.