Harold Coleman Hall v. Director of Corrections California State Attorney General

PER CURIAM Opinion; Dissenting Opinion by Judge TALLMAN.

*978PER CURIAM:

In 1990, California state prisoner Harold Coleman Hall was convicted by a jury of first degree murder for the killing of Nola Duncan.1 The conviction was based almost entirely on Hall’s confession, obtained while Hall was in custody for an unrelated crime. The confession, however, was rather suspect, as the subsequent police investigation revealed that various aspects of it were clearly untrue. Unable to find any physical evidence to connect Hall to the murder, the prosecution relied upon two documents provided by a jailhouse informant, Cornelius Lee, to corroborate Hall’s confession. These “jailhouse notes” •were admitted at trial without testimony by the informant as to their authenticity.

The notes purported to be a series of questions and answers between Lee and Hall; after the trial, however, Lee confessed he had submitted innocent or innocuous questions to Hall and then erased and altered them after Hall had written his answers in order to make them incriminating.2 Expert testimony confirmed that erasures had been made on the documents. After hearing testimony regarding the falsification of the jailhouse notes, the state trial judge who had originally tried the case concluded that a new trial was necessary. The California Court of Appeal reversed, finding that Hall had not proven the notes were false, apparently believing the state trial judge had not found falsity either. Today we hold that the California Court of Appeal’s decision was an unreasonable determination of the facts in light of the evidence presented to the state court. The falsification of this material evidence violated Hall’s due process rights, and a new trial is required.

I.

Hall was taken into custody on August 17, 1985, for a robbery unrelated to the Duncan murder. He was placed in an area of the jail known as “informant’s row.” On September 5, 1985, based on information received from informants, police interviewed Hall regarding his possible involvement in Duncan’s murder. Hall told Detective Crocker that while visiting a friend at 48th and Vermont, he observed the body of a dead female in the alley. Hall also stated that two days later, while talking with Jerry Knox and Terry Ross at a beauty salon, he heard Knox brag that he had killed a woman and dumped her body in an alley.

On September 9, 1985, Crocker interviewed Hall and showed him two photo lineups containing pictures of Knox and Ross. Hall correctly identified the photos of Knox and Ross. During this interview, Hall told the detective that Knox and Ross had raped and stabbed Duncan. He stated that he was in the car with Knox and Ross when they transported Duncan’s body and dumped it in the alley.

Detectives Crocker and Arneson subsequently discovered that Knox was in prison at the time of the murders. On September 11, 1985, Detectives Crocker and Arneson interviewed Hall again at the jail. For the first time, the police gave Hall Miranda warnings. They thereafter confronted him with this information, and told *979him they knew he was lying. This time Hall implicated himself in the murder, stating that he arrived at the beauty shop at 47th Street and Vermont in the early morning hours on June 27, 1985. Duncan was being held there in a back room by four men, one of whom was Terry Ross. Hall and the other men took turns raping Duncan. The other men took turns stabbing Duncan. Hall stabbed Duncan twice in the arm. The men then placed Duncan’s body in the trunk of a car and three of them, including Hall, drove to the alley and dumped the body there. Hall gave a description of the position of the body that matched the police crime scene description. The men then discussed returning to kill Rainey, because he knew that his sister, Nola Duncan, was with them. Hall left the group at that point and heard later that Rainey had been killed. Detective Crocker reduced this statement to writing, and Hall signed it.

On September 20, 1985, Detective Arne-son was given two documents by Lee, an inmate on “informant’s row” in Los Ange-les County Jail. The two documents were notes which Lee indicated had been passed back and forth between himself and Hall, with Lee posing questions and Hall answering them. The contents of the notes, including spelling and grammatical errors, were as follows:

Q: “After you guys killed the gril, did you and V-Dog kill her brother two[?]”
A: “possible.”
Q: “Okay, befor you guys killed her. Did she in joy you makeing her make love to you how could you tell[?]”
A: “Cause she was saying she did.”
Q: “Hey, home boy the police want you and V-Dog bad for killing that gril on 49th and Vemout. Listing you are going to have to stop tell people that you killed that gril. Okay when you guys put her in alley, who seen her[?]”
A: “Everybody was their the whole Neabior Hood even old people.”
Q: “Did you killing that gril on 49th and Vermout. And why did you tell the ploice they know you did it[?]”
A: “(That yes) because they said They will book me if I ly.”

(E.R. at 252.)

At trial, the defense offered evidence that Hall’s two oral statements were contradictory, and his written statement contained multiple facts that contradicted evidence from the crime scene. According to Hall’s written confession, Todd Smith initiated and directed Duncan’s rape and murder, and her body was transported in Smith’s car from the beauty parlor to the alley. Smith was questioned by Detective Arneson. Smith admitted knowing Hall, but denied any knowledge of or involvement in the murders. Smith’s car was examined by police; his tires did not match the prints of those found in the alley, and a forensic examination of his car did not reveal any evidence linking it to the crime or to Hall. Smith was never arrested or charged.

According to Hall’s confession, the back room of the beauty parlor where Duncan was raped and murdered was at 47th and Vermont. At trial, the owners of the beauty salon at that location testified that it had no back room, and that there had never been signs of a forced entry, or blood, or evidence of any bizarre occurrence. The owners testified that they were not contacted by police. Detective Arneson testified that he did not search the beauty salon because he never believed it was the scene of the crime.

Hall’s confession stated that Duncan was repeatedly raped prior to her murder. At trial, the forensic pathologist testified that it was his opinion that Duncan had not engaged in sexual activity for at least two *980hours prior to her death. According to Hall, when Duncan was stabbed, her blouse was open, her brassiere was off, and she was otherwise naked. The forensic pathologist contradicted this, stating that his examination indicated that Duncan’s clothing had been moved or removed after her death. Cuts in her brassiere matched stab wounds on her chest, and blood on the pants indicated she was probably wearing her pants when she was stabbed.

Hall also attempted to show that the murders were committed by someone else. Based on information obtained from Duncan’s husband, who had investigated her murder on his own, Hall submitted testimony from various individuals that suggested Duncan may have been killed for selling “bad water” (bad PCP) to a man named Theadry Powell, who was also known as June or Junior.

At trial, Lee’s notes were admitted as adoptive admissions over the defense counsel’s objections for lack of foundation, hearsay, characterization of the notes as admissions, and relevance.3 The prosecution’s evidence connecting Hall to the crime consisted of his two oral statements, his written statement, and the notes obtained from Lee. There was no physical or forensic evidence connecting Hall to the murder, or to the area where Duncan’s body was found.

Lee’s notes were used by the prosecution in its closing argument to corroborate Hall’s confession, and the discrepancies contained in it. The prosecution did not call Lee. Post-trial proceedings revealed that the state chose not to call Lee to testify at the trial after he had told prosecutors they would be surprised by what he had to say. The jury convicted Hall on both counts, and he was sentenced to life in prison without the possibility of parole.

Subsequently, in a post-trial interview, Lee admitted to having deliberately fabricated the jailhouse notes by changing the questions after Hall had written his answers. Lee testified that the reason he lied was because the police threatened to kill him and his mother if he did not lie, and was promised a manslaughter conviction on his pending murder count.

In September 1994, Hall filed a habeas petition in the state trial court on the basis that his conviction was a result of false evidence presented to the jury. The trial court held an evidentiary hearing on the matter. Following the hearing, the trial court granted a writ of habeas corpus and ordered a new trial.

At the evidentiary hearing, Lee testified that when he wrote the questions in pencil, he applied very little pressure, and he positioned the questions to leave blank space where he could later write in new questions. Once he received the note back from Hall with an answer, he would erase the original question and write in a different question above Hall’s answer that made the answer incriminating.4 Hall and *981the prosecution both presented testimony from document review experts. Hall’s expert identified three different types of alterations on the exhibits: erasures, disturbance of fiber, and overwriting.

In 1996, prior to the retrial, the California Court of Appeal, Second Appellate District, Division One, reversed the trial court, holding that Hall did not prove by a preponderance of the evidence that the notes were false. (In re Hall, No. B094232 (Cal.Ct.App. July 23, 1996)). Hall’s petition for review in the California Supreme Court was denied. (People v. Hall, No. B094232 (Cal. Nov. 13, 1996)). Subsequently, Hall filed three state habeas petitions, two in the California Supreme Court and one in the California Court of Appeal. All three petitions were denied.

Hall filed a timely petition for a writ of habeas corpus in federal district court under 28 U.S.C. § 2254. He raised several constitutional issues including the use of false evidence to obtain his conviction, and the denial of his Sixth Amendment right to confront witnesses against him. The district court denied Hall’s petition.

On April 10, 2002, Hall filed a Notice of Appeal. The district court construed the Notice of Appeal as a request for a Certificate of Appealability and granted the request on April 23, 2002.

II.

A. Due Process Concerns

Hall’s basic claims5 relate to the admission of, and use of the jailhouse notes, subsequently proven to have been altered from their original state, as evidence in his trial. It is the use of these two exhibits as evidence at Hall’s trial that presents serious concern. First, Hall claims that these exhibits constitute false and material evidence upon which his conviction was based, requiring a new trial.

In Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), Chief Justice Warren wrote for the Court, “First, it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, ... The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id. (internal citations omitted).

Hall does not claim that the prosecution knew that the jailhouse notes were false at the time they were admitted into evidence; however, Hall does argue that to allow his conviction to stand, based on the present knowledge that the evidence was falsified, is a violation of his right to due process under the Fourteenth Amendment. Id.; United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Alcorta v. Texas, 355 U.S. 28, 31, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957).

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court reaffirmed its prior holdings that suppression of evidence favorable to the defense is a denial of due *982process, and a denial of due process occurs where the state allows false evidence to go uncorrected. Id. at 87, 83 S.Ct. 1194(citing Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Napue, 360 U.S. at 269, 79 S.Ct. 1173). In addition, the Court held that suppression of “material” evidence by the prosecution results in a due process violation, regardless of whether there is good faith on the part of the prosecution. Brady, 373 U.S. at 87, 83 S.Ct. 1194. A new trial is required if “the false testimony could ... in any reasonable likelihood have affected the judgment of the jury....” Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (quoting Napue, 360 U.S. at 271, 79 S.Ct. 1173).

B. Falsity

As the state habeas trial judge recognized, the threshold factual question is whether the notes were indeed false evidence. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may grant relief only if the state court adjudication:

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding.

Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 364, 154 L.Ed.2d 263 (2002); Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); 28 U.S.C. § 2254(d)(2).

A critical portion of the evidence presented to the state court was Lee’s testimony. Lee testified that he “set up” Hall to provide allegedly self-inculpatory responses to his questions, for purposes of securing a better deal for himself in his own case. Specifically, Lee testified that he changed the questions after Hall wrote his answers in order to make them appear incriminating to Hall. Lee testified that when he wrote the questions, he applied very light pressure.

The state habeas trial judge was understandably leery of Lee’s story, and found him to be “plainly a liar,” but also noted that “we have more than Mr. Lee coming into this case. We have scientific evidence that establishes that the letters, the correspondence between him and Mr. Hall includes some erasures.” And indeed, the testimony of both handwriting experts provided support for Lee’s testimony. Both experts testified that there had been erasures on the documents, and that they might have missed areas of erasure due to many environmental factors that affect the detection of alterations. The prosecution expert’s opinion was consistent with Lee’s testimony regarding his method for altering the documents. The expert stated that if soft lead was used and little pressure was applied, he would not be able to detect the erasure.6

Lee’s testimony, as supported by the scientific evidence, led the state trial court to conclude that a new trial was necessary. On appeal, however, the California Court of Appeal apparently believed that the trial court did not make a finding that the notes were false, and thus did not accord the findings the “great weight” to which they are entitled. (In re Hall, No. B094232 at 9.) However, in granting a new trial, the trial judge implicitly acknowledged a finding of false evidence. At the outset, the trial judge identified the falsity of the notes as the crucial question:

[W]e have a specific allegation of falsification of evidence. And it would seem to me that we should address that. If additional evidence is necessary to es*983tablish materiality once that falseness has been shown in connection with your desire for a new trial, that might require additional evidence. But I’d like you to focus on what’s at issue here, which is whether or not exhibits 13 and 14 were somehow falsely generated or fabricated in connection with this trial.
The reason we have this hearing is because of a petition which I have just quoted from, which asserted that the Cornelius Lee notes, exhibit 13 and 14, were somehow tampered with or fabricated to create false evidence against Mr. Hall. If that’s not proven, I think that moots — I mean that ends the hearing. If that is proven, then the next question is, should a new trial be ordered.

The trial judge expressly acknowledged the applicable standard of materiality, stating that in order to grant a new trial the false evidence would have to be found to be material to the jury’s verdict:

I remember this case. It was an unusual case in many parts, and the evidence was in some parts quite strange and different. And I think that (defense) counsel makes an accurate point when he urges that these exhibits had to be material. There’s no way that this Court can find them not to have been material. So it comes back to these two exhibits. This Court, I think, has to find that because the scientific evidence establishes that there were alterations at some point, and because Mr. Lee’s testimony as to those alterations, for whatever value it may or may not have, was not presented to the trier of fact to assist it in evaluating these statements, and because these exhibits I think were material to the jury’s decision, or more precisely because I certainly cannot determine as a matter of law that they were not, I fear and I find that I have no legal or moral choice but to grant the petition for writ of habeas corpus and order a new trial for Harold Hall.

That the state habeas court granted Hall’s petition, in light of the court’s statements throughout the hearing regarding the requirement that Hall prove -the existence of false evidence indicates an implicit and necessary finding by the trial judge that the exhibits had, indeed, been falsely altered. The judge acknowledged that this false evidence was a necessary precedent for the trial court to find materiality in order for the writ to be granted. Thus, in granting Hall’s petition, the trial court implicitly, if not expressly, found the notes to be false evidence.7

The California Court of Appeal, therefore, proceeded from an incorrect premise, “agreeing” with the trial court that the notes were not false evidence, instead of acknowledging the trial court’s implicit finding that they were. This was an unreasonable determination of the facts in light of the evidence that was presented at the state court evidentiary hearing. The state habeas trial judge necessarily found the notes to be false, and this finding was entitled to “great weight.”

C. Materiality

A new trial is not automatically required when false evidence is discovered. Rather, “[a] finding of materiality of the evidence is required under Brady, ... [a] new trial is required if ‘the false testimony could ... in any reasonable likelihood have affected the judgment of the jury....’” Giglio, 405 U.S. at 154, 92 S.Ct. 763, (quoting Napue, 360 U.S. at 271, 79 S.Ct. 1173). “The question is not whether the defendant would more likely than not have received a different verdict *984with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (reversing and remanding where evidence, undisclosed by the state, was found to be “material,” meaning that it was favorable to the defendant, and the absence of this evidence at trial undermined confidence in the outcome of the trial).

In addressing Hall’s claim of false evidence, the California Court of Appeal assumed without deciding that the notes were material, and thus there was no clear holding with respect to this claim. Later in the opinion, however, when addressing a similar claim which required a finding that the notes established a complete defense of innocence, the court stated that there was “overwhelming evidence of Hall’s guilt” independent of the notes. To the extent this finding is entitled to AEDPA deference, it was also an unreasonable determination in light of the evidence presented at Hall’s trial.

There was absolutely no physical or forensic evidence connecting Hall to the body or the alley in which it was found. The only other evidence of Hall’s guilt was his curious and largely uncorroborated confession, which was shown to contain multiple inconsistencies and inaccuracies. For the most part, the confession did not match the evidence of the crime, and the descriptions of the position and location of the body were public knowledge. Once Hall’s statements were shown to contain multiple discrepancies, the jailhouse notes took on added importance.

Recognizing this, in closing argument, the prosecutor urged the jury to rely on the notes as corroborating evidence of Hall’s guilt. In responding to the defense attacks on Hall’s confession, the prosecutor stated, “you have a handwritten note by the defendant, which the defense didn’t try to explain, where he also admits liability.” The prosecution used Lee’s notes to corroborate Hall’s confession, but the jury never had the opportunity to hear Lee testify and to assess his demeanor and veracity.

This is precisely why the state trial judge (who had presided over the original trial) concluded that the notes were material to the jury’s decision. There is a reasonable likelihood that the introduction of the falsified notes affected the jury’s verdict in this case. Giglio, 405 U.S. at 154, 92 S.Ct. 763. We have no confidence in the verdict under these circumstances. Kyles, 514 U.S. at 434, 115 S.Ct. 1555. In light of the already scant evidence on which the conviction was based, and the emphasis the notes thus took on at the original trial, it was unreasonable for the California Court of Appeal to conclude otherwise.8

*985Because false and material evidence was admitted at Hall’s trial in violation of his due process rights, we REVERSE the judgment of the district court with instructions that it should issue an unconditional writ of habeas corpus unless the state court grants Hall a new trial within 120 days of the issuance of this court’s mandate.9

. Hall was also convicted of the second degree murder of David Rainey and the jury found the special circumstances of murder during the commission of a rape and multiple murders. This conviction and the special circumstances were later overturned on appeal for insufficiency of the evidence. People v. Hall, B062985 (Cal.App. April 7, 1994).

. For example, Lee testified that he changed the question "Homeboy, do you think you're going to get any time on the case, the robbery case,” to which Hall had responded "possible,” to read "After you guys killed the gril [sic], did you and V-Dog kill her brother two [sic]?”

. In admitting the jailhouse notes, the court instructed the jury:

Ladies and gentlemen, by way of explanation, these two documents, people's exhibits 13 and 14, both contained in this single sheet here are offered by the people on the theory that they represent questions asked by Mr. Cornelius Lee, written in all caps, and answers given by the defendant, Mr. Hall, written in not all caps, a total of two questions and two answers on each of the two exhibits, a total of four questions and four answers.

(Tr. Tran.4637.)

. At an evidentiary hearing conducted on May 16, 1995, Lee testified that the first question originally asked: "Homeboy, do you think you're going to get any time on the case, the robbery case,” to which Hall responded "possible.” (Evidentiary Hr'g Tr. May 16, 1995 at 96.) Lee testified that in the second question he asked if Hall knew about something that *981Lee did with his girlfriend Glynnis, who Hall was acquainted with. (Evidentiary Hr’g Tr. May 16, 1995 at 101-03.) Hall replied, "Cause she was saying she did.” Lee testified that in the original third question he asked Hall, "[D]id he go to a certain individual's barbecue or party, and I think he said 'yes,' he did, and everybody was there or something like that.” (Evidentiary Hr'g Tr. May 16, 1995 at 97.)

. Hall also claims: (1) he was denied the right to self-representation, in violation of the Sixth Amendment; (2) that his September 11, 1985, confession was coerced and involuntary; and (3) that he was denied his Miranda rights as to his first two statements. We have examined the record and find that these claims are without merit.

. The dissent makes much of the trial judge having thought Lee a liar. We suggest this adds to rather than detracts from that judge’s conclusion that doubts about the accuracy and reliability of the jailhouse notes made a new trial necessary.

. The judge also found that Lee's testimony was not credible "except to the extent that it is supported by scientific evidence." (emphasis added).

. We do not, as our colleague in dissent suggests, substitute our own judgment for that of the state court. Critical to our analysis is that the same judge who sat through the entire state trial, concluded that a new trial was necessary because of doubts about the credibility of the jailhouse notes and the absence of Lee as a witness. We are fully cognizant of the limited review power of the federal courts under AEDPA and the Supreme Court decisions of Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002), and Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). For the reasons we have set forth in the majority opinion, we have concluded the state appellate court’s judgment to be objectively unreasonable. This determination is not a mere synonym for clear error.

AEDPA, although emphasizing proper and due deference to the state court’s findings, did not eliminate federal habeas review. Where there are real, credible doubts about the veracity of essential evidence and the person who created it, AEDPA does not require us to turn a blind eye. Was Lee lying when he *985testified at the preliminary hearing that the notes were authentic or when he later swore that they were altered to falsely incriminate Hall? To avoid a miscarriage of justice, the trial court concluded that a jury should make that determination in a new trial with Lee present as a witness and subject to cross-examination. Our opinion does nothing more or less than respect the judgment of the only jurist who, by virtue of being present at Hall’s trial, was in a unique position to understand the impact of the notes and Lee’s absence.

. Because of our decision that a new trial is necessary, we do not reach the question of whether the introduction of the jailhouse notes without Lee's testimony also violated the Confrontation Clause.