Shilling v. Cain

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-30431
_____________________

JOHN O SHILLING

Petitioner - Appellant

v.

BURL CAIN, Acting Warden, Louisiana State Penitentiary
STATE OF LOUISIANA

Respondents - Appellees

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
(CA-94-3253-F)

_________________________________________________________________

March 11, 1996
Before KING, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

John Shilling appeals the district court's dismissal of his

petition for a writ of habeas corpus under 28 U.S.C. § 2254. We

affirm.

I. FACTS AND PROCEDURAL BACKGROUND

After a jury trial in Louisiana state court, John Shilling and

*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
Herman Billiot were found guilty of the murder of James Stache.

The Louisiana Supreme Court recounted the facts of the case as

follows:

Through the testimony of two female eyewitnesses, it was
proven that Billiot, Shilling and another unidentified
male were out on the town visiting various Gretna and
Marrero, Louisiana, nightspots. Late in the evening they
met with Pamela LeBlanc at one of these nightspots and
still later met with Stephanie (Penny) Plaisance at
another nightspot. This group went to yet another bar
where Ms. LeBlanc met the victim, James Stache. After
they had all consumed some unknown quantity of beer, the
party of six left in Shilling's automobile traveling
towards Lafitte, Louisiana. The unidentified male passed
out in the car and remained unconscious for the remainder
of the night. On the way to Lafitte, in the early pre-
dawn hours, Shilling stopped his automobile twice,
presumably so he and others could answer the call of
nature. The first place he stopped was too well lit and
there were too many people nearby watching another car on
fire. Shilling then drove down the road a little further
and stopped a second time. Billiot, Shilling and the
victim, with the help of the defendants got out of the
car and walked about ten (10) feet from the side of the
vehicle. Billiot and Shilling then began to beat and
kick the victim, both pulling knives to cut and stab him.
The defendants beat the victim senseless and robbed him
of $30.00. Billiot and Shilling then returned to the
others and drove away to Shilling's residence in Lafitte,
leaving the victim for dead on the side of the road.
Soon after arriving at his residence, Shilling and
Billiot left the two women and returned to the scene of
the initial attack to find Shilling's lost knife. When
they arrived, they found the missing knife and the
victim, still alive, trying to hitchhike.
The defendants put the victim into their automobile
and drove a little further down the road to a more
secluded spot. They dragged the victim from the back
seat out to the edge of a bayou; each of them punching
the victim in the throat, Billiot first, then Shilling,
whereupon Shilling then slit the victim's throat with his
knife; pushed his head under water and stood on him until
the victim eventually drowned. The defendants returned
to Shilling's residence, to pick up the two women and
take them home, telling them how they had finished off
the victim. Shilling also threatened the women with
death if they told anyone about the killing.

State v. Shilling, 440 So. 2d 110, 111-12 (La. 1983) (quoting State

2
v. Billiot, 421 So. 2d 864, 866 (La. 1982)).

After Shilling was found guilty of first degree murder, he was

"sentenced to life imprisonment without benefit of parole probation

or suspension of sentence,"2 and the conviction and sentence were

affirmed on direct appeal. Id. Shilling exhausted his state

habeas remedies. State ex rel. Shilling v. Whitley, 637 So. 2d 459

(La.), clarification granted, 642 So. 2d 183 (La. 1994).

On November 2, 1994, Shilling filed a federal habeas corpus

petition under 28 U.S.C. § 2254. He filed a memorandum and

exhibits in support of that petition. At the order of the

magistrate judge, the state filed a memorandum in opposition to the

petition. The magistrate judge issued his report and

recommendation that Shilling's petition be denied. Shilling

objected to this recommendation. The district court adopted the

magistrate judge's report and recommendation. Shilling filed a

notice of appeal and a motion for a certificate of probable cause,

which the district court denied. On appeal, we granted Shilling's

motion for a certificate of probable cause.

II. STANDARD OF REVIEW

In reviewing the habeas proceedings of a prisoner in state

custody, we generally must accord a presumption of correctness to

state court findings of fact. Mann v. Scott, 41 F.3d 968, 973 (5th

Cir. 1994) (citing 28 U.S.C. § 2254(d)), cert. denied, 115 S. Ct.

1977 (1995). We review the district court's findings of fact for

2
"Billiot was convicted of second degree murder and
sentenced to life imprisonment." Shilling, 440 So. 2d at 111 n.1.

3
clear error and decide conclusions of law de novo. Id.

III. DISCUSSION

Shilling raises five issues in the instant federal habeas

corpus petition: (1) whether the instruction to the jury on the

law of principals was constitutionally infirm; (2) whether Shilling

was denied a fair trial because all potential jurors unwilling to

impose the death penalty were excluded from the jury; (3) whether

the jury instruction on reasonable doubt was constitutionally

infirm; (4) whether the prosecution suppressed exculpatory evidence

and knowingly used perjured testimony; and (5) whether the

prosecution failed to disclose an agreement with the prosecution

witness. We address these issues seriatim.

A. The Jury Instruction on the Law of Principals

Shilling argues that he was denied due process in violation of

the Fourteenth Amendment because the trial court failed to properly

instruct the jury on specific intent. Shilling was charged with

first-degree murder. To be convicted of such a crime, an

individual must have the requisite mental state--the specific

intent to kill or do great bodily harm. State v. Shilling, 440 So.

2d at 112 (citing La. Rev. Stat. 14:30(1)). According to Shilling,

the court's instruction on the law of principals relieved the State

from proving beyond a reasonable doubt that he had the specific

intent to kill.

To support his argument, Shilling relies on State v. West, 568

So. 2d 1019 (La. 1990), and on a habeas-corpus action brought by a

Louisiana state prisoner, Flowers v. Blackburn, 779 F.2d 1115 (5th

Cir.), cert. denied, 475 U.S. 1132 (1986). In West's case, West

4
testified that an acquaintance kidnapped two people and later

murdered them in front of him. The jury charge stated in part,

"All persons, knowing the unlawful intent of the person committing

the crime . . . are principals and are equal offenders and are

subject to the same punishment." West was convicted of first-

degree murder. The jury charge in West was found to be erroneous

because it might have led the jury to believe that specific intent

could be implied from the mere fact that the defendant knew of his

co-perpetrators' intent. 568 So. 2d at 1024. Similarly, in

Flowers, where the defendant claimed that a confederate had raped

and killed the victim, we held that the jury instructions on the

law of principals--identical to those given in West--could have

allowed the jury to find the defendant guilty of first-degree

murder without finding that he had a specific intent to kill, as

required by Louisiana law. 779 F.2d at 1121.

The instructions on the law of principals given by the trial

court in this case were virtually the same as those found to be

constitutionally deficient in West and Flowers:

All persons knowing the unlawful intent of the person
committing the crime, who were present, consenting
thereto, and aiding and abetting either by furnishing the
weapons of attack, encouraging by words or gestures, or
endeavoring at the time of the commission of the offense
to secure the safety or the concealment of the offender,
are principals and equal offenders and subject to the
same punishment.

As in West and Flowers, the instruction lacks an explicit

explanation that the jury must find that each individual had the

specific intent to kill. Although the trial court noted that the

jury must find every element of the crime for each defendant in

5
order to convict, we have held that such a general instruction is

not sufficient to cure erroneous instruction on the law of

principals. Flowers, 779 F.2d at 1122-23 ("The charge read as a

whole does not alleviate the error.").

However, federal habeas courts do not grant relief solely on

the basis that a jury charge was erroneous. Estelle v. McGuire,

502 U.S. 62, 72 (1991). It must be established that the particular

charge at issue violated some constitutional right when viewed in

the context of the trial record and the jury instructions as a

whole. Id. The question is "whether the ailing instruction by

itself so infected the entire trial that the resulting conviction

violates due process." Id. (citation omitted). Moreover, there

is a strong presumption that errors in jury instructions are

subject to harmless-error analysis. See Rose v. Clark, 478 U.S.

570, 576-80 (1986). Thus, even if the instruction was erroneous,

where the error is harmless, habeas-corpus relief is not warranted.

See Brecht v. Abrahamson, 113 S. Ct. 1710, 1721-22 (1993). In a

habeas proceeding, a constitutional error is not harmless if it

"had substantial and injurious effect or influence in determining

the jury's verdict." Id. (internal quotation marks and citation

omitted).

We conclude that the erroneous jury instruction in this case

did not have a substantial and injurious effect on the verdict.

Prosecution witnesses testified at trial that Shilling slit the

victim's throat and then held the victim's head under water to

ensure his death. "At trial neither Billiot or Shilling testified.

Shilling relied on the testimony of two witnesses to establish an

6
alibi for his whereabouts on the night of the murder." State v.

Shilling, 440 So. 2d at 114. In view of the trial record and in

light of the fact that the jury found Shilling guilty of first

degree murder and his codefendant, Billiot, guilty of second degree

murder, it is unreasonable to believe that the jury convicted

Shilling on the basis of Billiot's intent and not his own.3 The

deficiency in the jury charge on the law of principals was harmless

error.

B. Exclusion of Jurors Unwilling to Impose the Death Penalty

Shilling complains that he was denied an impartial jury

because six potential jurors were excused for cause based on their

3
The jury was instructed that:

[I]n order to convict the defendant of first degree
murder you must find:
1. that the defendants killed James H. Stache; and

2. that the defendants acted with the specific
intent to kill or to inflict great bodily harm;
and
3. that the defendants were engaged in the
perpetration or attempted perpetration of an armed
robbery.
. . .

[I]n order to convict the defendant of second degree
murder, you must find:
1. that the defendant killed the victim; and
2. that the defendant acted with the specific
intent to kill or to inflict great bodily harm
OR
1. that the defendant killed the victim whether
or not he had an intent to kill; or to inflict
great bodily harm.
AND
2. that the killing took place while the
defendant was engaged in the commission or
attempted commission of an armed robbery or simple
robbery, [aggravated rape, aggravated burglary,
aggravated kidnapping, or aggravated escape].

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unwillingness to impose the death penalty. He supports his

argument by citing Grigsby v. Mabry, 637 F.2d 525, 529 (8th Cir.

1980) (remanding habeas petition for evidentiary hearing to

determine whether exclusion of jurors unable to consider imposing

death penalty subjected defendant to jury biased in favor of the

prosecution). As raised by Shilling, "[t]his theory has repeatedly

been rejected by this Court and has been held not to justify our

granting of a certificate of probable cause." Rault v. State, 772

F.2d 117, 133 (5th Cir. 1985), cert. denied, 476 U.S. 1178 (1986).

The trial court's decision to exclude a juror because of the

juror's views on capital punishment is entitled to the presumption

of correctness accorded under § 2254(d). Wainwright v. Witt, 469

U.S. 412, 429 (1985). "[T]he decisive question is whether the

juror's views would prevent or substantially impair the performance

of his duties as a juror in accordance with his instructions and

his oath." Mann, 41 F.3d at 980 (internal quotation marks and

citation omitted). The Constitution does not prohibit the

exclusion of a venire member for cause when it is clear that he or

she cannot faithfully render a verdict according to the evidence.

Id. at 981; see also Adams v. Texas, 448 U.S. 38, 45 (1980) (noting

that the State may insist jurors conscientiously apply the law as

charged by the court).

In this case, the trial court took care not to automatically

exclude potential jurors who verbalized reservations about the

death penalty. Nine potential jurors in all expressed a reluctance

to impose the death penalty. After questioning each of these

potential jurors, the trial judge refused to dismiss three of them.

8
Shilling concedes that each of the six excused potential jurors

indicated that he or she could not impose the death penalty in any

case. Thus, Shilling's claim fails because the views of those six

potential jurors would "distort [their] ability to uphold the law."

Mann, 41 F.3d at 981. This claim does not warrant habeas relief.

C. The Jury Instruction on Reasonable Doubt

Shilling argues that the trial court erroneously instructed

the jury on the issue of reasonable doubt. He contends that the

trial judge did not inform the jury, as required by State v. Mack,

403 So. 2d 8, 11 (La. 1981), that they could form a reasonable

doubt from the lack of evidence in the case.4 As support for his

contention, Shilling points to a statement made to potential jurors

prior to voir dire.

In reviewing this issue, the magistrate judge found as a fact

that the trial court issued the following instructions:

The defendants are presumed to be innocent until
each element of the crime necessary to constitute [their]
guilt is proven beyond a reasonable doubt. The defendant
is not required to prove that he is innocent. Thus, each
defendant begins the trial with a clean slate.

The burden is upon the State to prove each
defendant's guilt beyond a reasonable doubt. In
considering the evidence, you must give each defendant
the benefit of every reasonable doubt arising out of the
evidence or out of the lack of evidence. If you are not
convinced of the guilt of each defendant beyond a
reasonable doubt, you must find him not guilty.

(emphasis added). As the record shows, the trial court did

instruct the jury they could find a reasonable doubt from the lack

4
Mack requires that a trial judge include the exact
language of article 804 of the Louisiana Code of Criminal Procedure
in his instructions to the jury on reasonable doubt. Mack, 403 So.
2d at 11.

9
of evidence. The language cited is virtually identical to the

language of article 804 of the Louisiana Code of Criminal

Procedure. We conclude that Shilling's contention regarding the

reasonable doubt instruction has no merit.

D. Suppression of Exculpatory Evidence

Shilling asserts that the state suppressed exculpatory and

impeachment evidence in the form of a police report. The Brady

doctrine requires that the prosecution disclose evidence favorable

to the defense. Brady v. Maryland, 373 U.S. 83, 87 (1963).

However, it does not mandate that the prosecution allow complete

discovery of its files as a routine practice. United States v.

Agurs, 427 U.S. 97, 109-10 (1976). A prosecutor's failure to

disclose information amounts to a constitutional violation only

where the nondisclosure deprives the defendant of a fair trial.

Id. at 108.

To prevail on his Brady claim, Shilling must show that (1) the

prosecution suppressed evidence, (2) the evidence was favorable to

his defense, and (3) the evidence was material. East v. Scott, 55

F.3d 996, 1002 (5th Cir. 1995). "Undisclosed evidence is material

if `there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have

been different.' A reasonable probability is `a probability that

is sufficient to undermine confidence in the outcome.'" Id.

(citing United States v. Bagley, 473 U.S. 667, 682 (1985)).

Shilling asserts that LeBlanc's trial testimony was

inconsistent with information contained in the police report. The

testimony that LeBlanc gave regarding which barroom she was in at

10
different points in the evening was at times inconsistent with the

information she had given in the police report. LeBlanc testified

at trial that she was not drunk at the time of the commission of

the crime, but in the police report she indicated that she was

drunk. Additionally, Shilling contends that the police report

indicated that prosecution witness Plaisance was angry and afraid

of him because she believed that Shilling had stolen $350 from her

common-law husband.

Shilling further asserts that the prosecution should have

disclosed a missing persons report which noted that the victim was

last seen alive at 10:00 p.m. on February 23, 1981, because LeBlanc

and Plaisance testified that the murder occurred on February 20,

1981. At trial, Dr. Alvaro Hunt, a pathologist, testified that the

victim died between 9:00 a.m. on February 23 and 9:00 a.m. on

February 26. The missing persons report and the pathologist's

testimony suggest that LeBlanc and Plaisance testified to an

incorrect date for the murder.

The district court found that the inconsistencies between the

police report and the trial testimony were not material. The

testimony of prosecution witness Plaisance was virtually unshakable

despite rigorous cross-examination. Moreover, the state reinforced

the testimony of LeBlanc and Plaisance by linking Shilling to the

crime through the presentation of physical evidence, such as blood

stains on the rear seat of Shilling's car, evidence of damage to

the exterior of the car--supporting testimony that the victim's

head was smashed against the vehicle, and photos of a wound to

Shilling's hand. We conclude, as the district court did, that any

11
inconsistencies which could have been brought out during cross-

examination of LeBlanc though the use of the contested suppressed

evidence would have been insufficient to alter the jury's verdict.

Shilling also argues that the prosecution knowingly utilized

perjured testimony because the prosecutor was aware of

inconsistencies between the police report and the trial testimony.

A different standard of materiality applies to a charge of knowing

use of perjured testimony than applies to a Brady claim.

Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993). "[I]f

the prosecutor has knowingly used perjured testimony or false

evidence, the standard is considerably less onerous: the

conviction `must be set aside if there is any reasonable likelihood

that the false testimony could have affected the jury's verdict. .

. .'" Id. (quoting Bagley, 473 U.S. at 679 n.9). We find that

Shilling has failed to meet even this less onerous standard.

Moreover, there is no evidence that the prosecution knowingly used

perjured testimony.

We conclude that Shilling's claims that the prosecution

suppressed evidence and knowingly used perjured testimony do not

warrant habeas relief.

E. Failure to Disclose Agreement with Prosecution Witness

Shilling asserts that the state failed to disclose an

agreement that it had with key prosecution witness LeBlanc. He

argues that disclosure of this agreement would have allowed the

defense to show witness bias. To support his contention of an

agreement, Shilling has produced two handwritten documents

purported to be letters from LeBlanc.

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 The supposed agreement addressed minor charges for public

drunkenness, resisting arrest, refusing to move on, and simple

battery. These arrests were all put before the jury, and on cross

examination, LeBlanc admitted that she was to be tried on a charge

of prostitution. She specifically denied that she had made any

agreement with the prosecution. The state denies that any deal was

made with LeBlanc and supports this assertion with an affidavit

from Patrick Leitz, the Assistant District Attorney who prosecuted

Shilling's case. The two handwritten documents have not been

authenticated in any manner, and the district court found them to

be insufficient to show that LeBlanc's testimony was obtained

through an agreement with the state.

Shilling has produced no evidence to support his contention

that there was a secret agreement to secure LeBlanc's testimony

against him. We conclude that the claim that Shilling was denied

due process because the prosecution failed to disclose

an agreement with a key prosecution witness is meritless.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

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