UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40406
RICKY DON BLACKMON,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
June 22, 1998
Before POLITZ, Chief Judge, JOLLY and EMILIO M. GARZA, Circuit Judges.
POLITZ, Chief Judge:
Convicted of capital murder and sentenced to death, Ricky Don Blackmon
appeals the denial of his 28 U.S.C. § 2254 petition for habeas corpus. The district
court denied relief and on an earlier appeal we vacated that judgment and remanded
for an evidentiary hearing. On remand, the district court again denied relief and
granted a certificate of probable cause. We now affirm.
BACKGROUND
The facts underlying this appeal are set out in full in the prior panel opinion.1
In summary, Blackmon was convicted of capital murder and sentenced to death by
lethal injection. During the punishment phase of the trial, the state offered
1
Blackmon v. Scott, 22 F.3d 560 (5th Cir. 1994).
evidence of an uncharged double homicide allegedly committed by Blackmon in
Oklahoma. The state’s witnesses implicating Blackmon in the Oklahoma murders
included Terry Sittig, Raymond Smith, Jr. and Gary Keith Hall. Sittig had pleaded
guilty to the Oklahoma murders, but testified that Blackmon assisted him. Smith
and Hall were Blackmon’s cellmates during his pre-trial detention and testified to
statements Blackmon allegedly made about his involvement in the Oklahoma
murders. Blackmon was not notified until October 26, 1987 that the Oklahoma
murders would be offered as an extraneous offense in the punishment phase which
began on November 9, 1987. Because Sittig, Smith, and Hall were incarcerated out
of the county, Blackmon’s counsel could not interview them until they were
relocated. Counsel was not notified of the presence of Smith and Hall in the county
until the night before they testified, and Sittig was not made available to counsel
until five minutes before he testified, and then in a vehicle accompanied by police
officers.
Blackmon’s conviction and sentence were affirmed on direct appeal.2
Blackmon unsuccessfully sought habeas relief in state court, and the federal district
court denied relief as well. On appeal, we vacated the judgment of the district court
and remanded for an evidentiary hearing and appropriate findings on Blackmon’s
claims that he was denied due process by the state’s suppression of impeachment
evidence, its use of perjured testimony, its use of extraneous offense evidence
resulting in unfair surprise, and the denial of access to witnesses Terry Sittig,
2
Blackmon v. State, 775 S.W.2d 649 (Tex. Crim. App. 1989) (unpublished), cert.
denied, Blackmon v. Texas, 496 U.S. 931 (1990).
2
Raymond Smith, Jr. and Gary Keith Hall. In addition he contends that his sixth
amendment rights were violated when Smith and Hall elicited statements from him
during his pre-trial detention.
An evidentiary hearing was conducted on April 5 and 6, 1995. On the second
day of testimony, after witnesses entered the courtroom, Blackmon moved for their
sequestration. After noting that no one had invoked the rule of sequestration
earlier, the court ordered the state to remove their witnesses from the courtroom.
In response, the state pointed out that a witness for the petitioner had been present
throughout the previous day’s testimony. To be fair to both sides, the court did not
order the witnesses sequestered. Before the next witness was called, Blackmon
renewed his motion for sequestration. The court adhered to its previous ruling
because the rule of sequestration was not invoked at the beginning of the
proceedings. After the hearing, Blackmon moved to strike the testimony of the
state’s witnesses who were present in the courtroom during the testimony of other
witnesses. The court denied this motion.
In due course the district court issued findings of fact and conclusions of law,
entered final judgment denying Blackmon’s petition for habeas corpus, and granted
Blackmon a certificate of probable cause.3 Blackmon timely appealed the denial
of his habeas petition and the denial of his motion to sequester the witnesses during
the evidentiary hearing. On appeal we review the district court’s factual findings
3
The respondent challenges the propriety of the certificate of probable cause. Subsequent
jurisprudence has made the issues raised moot. See Lindh v. Murphy, 117 S.Ct. 2059
(1997).
3
for clear error, questions of law are reviewed de novo, and mixed questions of fact
and law generally receive independent review.4
ANALYSIS
The district court concluded that no due process violation occurred in the
state’s failure to disclose impeachment evidence or use of perjured testimony. The
court found that the district attorney promised to write a letter to the parole board
on behalf of Hall and Smith if they testified truthfully and that this information was
not provided to defense counsel prior to trial, but that the jury was made aware that
Hall and Smith could benefit from testifying truthfully through their cross
examination and in counsel’s closing arguments. The court further found that no
promises were made to Sittig for his testimony. Blackmon challenges these
findings.
The state’s suppression of evidence favorable to the accused, including
evidence that may be used to impeach a witness’ credibility, constitutes a due
process violation if the evidence is material to punishment.5 Likewise, the state’s
knowing failure to correct false testimony violates due process if the false
testimony reasonably could have affected the judgment of the jury.6 In either case,
the nondisclosed evidence must be material to warrant reversal.7 Evidence is
4
Kirkpatrick v. Whitley, 992 F.2d 491 (5th Cir. 1993).
5
Brady v. Maryland, 373 U.S. 83 (1963); United States v. Bagley, 473 U.S. 667
(1985).
6
Napue v. Illinois, 360 U.S. 264 (1959).
7
Giglio v. United States, 405 U.S. 150 (1972).
4
material if a reasonable probability exists that had the evidence been disclosed to
the defense, the proceeding’s result would have been different. 8
At the evidentiary hearing Sittig testified that the district attorney offered to
write a letter for his prison jacket and to the parole board if he testified truthfully
at the punishment phase of Blackmon’s trial, but that he was reluctant to cooperate.
District Attorney John S. Walker testified that it was not his practice to offer
incentives for testimony and that he did not write any letters to fulfill promises, but
that he did so out of charity for the witnesses’ truthful testimony. Assistant District
Attorney Robert Goodwin testified that nothing was offered to Sittig for his
testimony, that Sittig was willing to testify truthfully, but did not want to appear to
be cooperating, and that great efforts were made to compel his appearance at trial
given his incarceration out of the state. Based on the record, and giving due
deference to the district court’s credibility determinations, we must conclude that
the district court’s finding that Sittig received no promises in exchange for his
testimony is not clearly erroneous. Because no Brady evidence existed and Sittig
was never questioned about any promises at trial, no due process violation occurred
as to Sittig.
Both Smith and Hall testified at the evidentiary hearing that they were
promised letters to the parole board if they testified truthfully at trial. Although
these promises were not disclosed to defense counsel prior to trial, the district court
found no due process violation because Hall testified at trial about the district
8
Bagley, 473 U.S. at 682; Kyles v. Whitley, 514 U.S. 419 (1995).
5
attorney’s promise to write a letter to the parole board and the district attorney
conceded such in his closing argument. Smith, on the other hand, did not reveal
that he received any promises when questioned, but the district court found that
given the compound nature of the questions posed, Smith did not commit perjury.
In addition, because Smith’s testimony was substantially the same as Hall’s, the
evidence about the promise was not material.9 Considering the record, we perceive
no error in the district court’s findings, and we find no due process violation
occurred based on the failure to disclose impeachment evidence or use of perjured
testimony.
The district court also concluded that there was no due process violation
based on unfair surprise by the use of extraneous offense evidence or the denial of
access to witnesses. The court found that because Blackmon’s counsel was aware
of the Oklahoma murders and Blackmon could not point to any material evidence
that was not presented at trial, no prejudice existed to support Blackmon’s unfair
surprise claim. The court also found that Blackmon’s counsel received sufficient
notice to interview Smith and Hall before they testified, and Blackmon failed to
demonstrate prejudice as a result of the minimal access he had to Sittig. Blackmon
contends that these findings are erroneous.
A state violates a capital defendant’s right to due process when it uses
evidence at the sentencing phase of the trial which the defendant does not have a
9
Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir. 1994) (“when the testimony of the
witness who might have been impeached by the undisclosed evidence is strongly
corroborated by additional evidence supporting a guilty verdict, the undisclosed evidence is
generally not found to be material.”).
6
meaningful opportunity to rebut.10 The denial of access to a material witness
constitutes a prima facie deprivation of due process.11 The demonstration of a due
process violation in these instances justifies reversal only upon a showing of
prejudice.12
Blackmon claims that he was misled about the state’s intent to use the
Oklahoma murders as extraneous offense evidence and did not have an opportunity
to rebut evidence about this crime as a result.13 The record reflects that defense
counsel was aware of the Oklahoma murders prior to June 1, 1987 and the district
attorney was aware that Blackmon was a suspect in the Oklahoma murders prior
to May 1, 1987. The district attorney informed defense counsel of his knowledge
of the Oklahoma murders on October 3, 1987. On October 6, 1987 the district
attorney advised defense counsel and the court that he intended to offer extraneous
offense evidence if there was sufficient proof, but such proof was not then
available. The district attorney agreed to inform defense counsel if the situation
changed. The district attorney continued to investigate Blackmon’s connection to
the Oklahoma murders and on October 26, 1987, immediately upon an assistant’s
return from questioning Sittig, the district attorney notified defense counsel that the
10
Gardner v. Florida, 430 U.S. 349 (1977).
11
Lockett v. Blackburn, 571 F.2d 309 (5th Cir. 1978); United States v. Clemons, 577
F.2d 1247, modified, 582 F.2d 1373 (5th Cir. 1978).
12
United States v. Henao, 652 F.2d 591 (5th Cir. 1981).
13
The respondent raises in its brief, for the first time in these proceedings, that
Blackmon’s unfair surprise claim is barred by Teague v. Lane, 489 U.S. 288 (1989). Given
the history of these proceedings, we find that the state waived this defense, and we decline
to apply it. Blankenship v. Johnson, 118 F.3d 312 (5th Cir. 1997).
7
Oklahoma murders would be offered as an extraneous offense in the punishment
phase, which began on November 9, 1987.
Blackmon asserts that if he had been given more notice of the state’s intent
to present the Oklahoma murders as extraneous offense evidence, counsel could
have investigated the crime and presented evidence rebutting Blackmon’s
involvement based on the eyewitness descriptions, the lack of an identification, and
an alibi, as well as impeachment evidence regarding his vehicle and the number of
individuals allegedly involved. The district court found, and the record supports,
however, that in cross-examining Detective Dennis Madison, defense counsel
presented evidence that the eyewitness’ description of the suspect did not match
Blackmon, the eyewitness could not identify Blackmon in a photographic spread,
and that Blackmon had an alibi. Madison also testified that hair and fingerprinting
sampling at the scene, and lab testing of Blackmon’s car failed to reveal any
evidence connecting Blackmon to the murders. That Sittig previously had
indicated that more than two people were involved was also the subject of
testimony. Because the record fully supports the district court’s finding of no
prejudice as to the unfair surprise claim, no error exists and Blackmon’s claim with
respect thereto lacks merit.
With regard to the denial of access to witnesses claim, Blackmon also fails
to demonstrate prejudice. While the evidence in the record is conflicting about
when defense counsel became aware that Hall and Smith were in Shelby County,
the state concedes on appeal that defense counsel was not notified by the district
8
attorney about the witnesses’ presence until late on the night before they testified.
The record further reflects that defense counsel was not made aware of Sittig’s
presence in the county until Sittig was called to testify, and counsel was then given
five minutes in which to question Sittig about his statement in a police car
surrounded by law enforcement officials.
Blackmon asserts that if counsel had obtained adequate access to these
witnesses prior to their testifying, the witnesses’ criminal histories would have been
investigated, the witnesses would have been questioned about any promises they
received for their testimony, and their backgrounds would have been investigated
to obtain impeachment evidence. The record reflects, however, that Smith, Hall
and Sittig testified to their criminal records at trial. Hall and Smith were also
questioned about any promises they received for their testimony and, as discussed
supra, no prejudice resulted in this regard. The district court found that defense
counsel adequately cross-examined these witnesses and Detective Madison,
eliciting impeachment evidence. The district court’s findings and its conclusion
that Blackmon suffered no prejudice from his access to the witnesses are fully
supported by the record. Accordingly, we conclude that no due process violation
based on unfair surprise or the denial of access to witnesses occurred.
As to Blackmon’s sixth amendment Massiah14 claim, the district court found
that jailer Phillip Lynch told Smith and Hall about the Oklahoma murders and that
they might receive some benefit in their cases if they learned more about the crime,
14
Massiah v. United States, 377 U.S. 201 (1964).
9
but Smith and Hall did not question Blackmon about the Oklahoma murders in an
effort to elicit incriminating statements. Blackmon asserts that this finding is
erroneous.
The sixth amendment is violated when statements are deliberately elicited
from the accused after the right to counsel has attached, but there is no violation
when statements are obtained by luck or happenstance.15 When an agent does more
than just listen, but also initiates discussion of the case which leads to incriminating
statements, a sixth amendment violation occurs.16
The record reflects that Lynch briefed Hall and Smith on the charges against
Blackmon and the Oklahoma murders and told them that any additional
information might help their cases, but neither Lynch, Hall, nor Smith testified that
Hall and Smith were told to question Blackmon about the crimes, or that they in
fact did so. Instead, the record reveals that Smith and Hall obtained information
from Blackmon by primarily “keeping their ears open.” The only evidence of an
initiation of discussion was an incident where Hall told Blackmon that what
happened in Oklahoma was not going to happen to him and that he was not afraid
after Hall and Blackmon became angry over a disagreement with a card game.
After tempers cooled, Blackmon questioned Hall about his knowledge of the
Oklahoma murders and began discussing the crime. The district court found that
this incident was not initiated for the purpose of eliciting statements about the
15
Maine v. Moulton, 474 U.S. 159 (1985).
16
United States v. Johnson, 954 F.2d 1015 (5th Cir. 1992).
10
Oklahoma murders, but was the result of an angry disagreement and Hall’s defense
of homosexuals. Considering the record and deferring to the trial court’s credibility
determinations, we find no clear error in its findings. Consequently, because Hall
and Smith did not deliberately elicit the statements, no sixth amendment violation
occurred.
Blackmon also contends that the district court erred in not sequestering the
witnesses during the evidentiary hearing and that the testimony of Robert Goodwin
and Paul Ross should be stricken. Blackmon invoked the sequestration rule during
the second day of testimony after witnesses entered the courtroom. The court did
not order the witnesses sequestered because the rule had not been invoked at the
beginning of the proceedings and a witness for Blackmon had been present in the
courtroom during the preceding day’s testimony.
Rule 615 of the Federal Rules of Evidence provides, “[a]t the request of a
party the court shall order witnesses excluded so that they cannot hear the
testimony of other witnesses....” We have held that the district court’s decision on
the sequestration of witnesses is reviewed for abuse of discretion and a party must
demonstrate “sufficient prejudice” to warrant relief.17 Even if we were to agree that
the trial court erred in not sequestering the witnesses, Blackmon is unable to
demonstrate sufficient prejudice from the testimony of Goodwin and Ross.
Blackmon points to two instances in the witnesses’ testimony where they referred
to testimony heard earlier in court. Goodwin’s memory was refreshed as to names
17
United States v. Payan, 992 F.2d 1387, 1394 (5th Cir. 1993).
11
and Ross noted that he was not aware of an alibi report until he heard reference to
it that day in court. These instances are insufficient to demonstrate prejudice as
they do not relate to substantive issues. Although Ross’ and Goodwin’s testimony
confirmed that of other witnesses, Blackmon suggests that such confirmation is
suspect given conflicting documentary evidence. This evidence was before the
court, however, and there is no indication that the court was unable to assess the
witnesses’ credibility under the circumstances. We perceive no prejudice.
The judgment appealed is AFFIRMED.
12