UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-20443
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RICARDO ALDAPE GUERRA,
Petitioner-Appellee,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
July 30, 1996
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Contending that the district court's factual findings of
numerous instances of police and prosecutorial misconduct,
including but not limited to the failure to disclose material,
exculpatory evidence to the defense, are clearly erroneous, Gary L.
Johnson, Director of the Texas Department of Criminal Justice,
Institutional Division, appeals the grant of habeas relief to
Ricardo Aldape Guerra, who was convicted of capital murder and
sentenced to death in 1982. We AFFIRM.
I.
On July 13, 1982, approximately two hours before midnight,
Houston police officer J. D. Harris stopped his police car behind
an automobile occupied by Guerra and Roberto Carrasco Flores
(Carrasco), at the intersection of Edgewood and Walker Streets.
Moments later, the Officer was shot three times in the head with a
nine millimeter weapon and died shortly thereafter. Jose Francisco
Armijo, who was near the intersection in an automobile with two of
his children (one of whom, then ten years of age, was a key witness
against Guerra at trial), was also shot in the head with a nine
millimeter weapon and died later.
Witnesses informed police that the suspects might be found in
the same neighborhood, at 4907 Rusk Street (Guerra’s address).
About one and one-half hours after Officer Harris was shot, Officer
Trepagnier approached a garage next to that address. Using a nine
millimeter weapon, Carrasco shot and seriously wounded the officer.
Carrasco was killed in the ensuing exchange of gunfire with police.
The nine millimeter weapon was found under Carrasco's body, and
Officer Harris' service revolver was found under Carrasco's belt,
along with another clip for the nine millimeter weapon.
Guerra was arrested moments after Carrasco was shot, when
officers found him hiding nearby. A .45 caliber pistol was found
within Guerra's reach.
Although the physical evidence pointed to Carrasco as Officer
Harris' killer, Guerra was charged with capital murder on the basis
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of eyewitness identification. (The State did not seek to convict
Guerra under the law of parties.)
In October 1982, three months after the murder, a jury found
Guerra guilty, rejecting his defense that Carrasco shot Officer
Harris; he was sentenced to death. The Texas Court of Criminal
Appeals affirmed in 1988, Guerra v. State, 771 S.W.2d 453 (Tex.
Crim. App. 1988); and the next year, the Supreme Court denied
Guerra’s petition for a writ of certiorari. Guerra v. Texas, 492
U.S. 925 (1989).
Guerra filed for habeas relief in the state trial court in May
1992. Following the appointment of new counsel that July, he filed
an amended application in mid-September. Four days later, the
trial court, without conducting an evidentiary hearing and making
findings of fact or conclusions of law, recommended denial of
relief. In January 1993, the Texas Court of Criminal Appeals
accepted the recommendation and denied relief.
Shortly thereafter, in February, Guerra sought federal habeas
relief. The district court conducted an extensive evidentiary
hearing that November, and, a year later, in November 1994, entered
an order granting relief. The order was amended the next May,
Guerra v. Collins, 916 F. Supp. 620 (S.D. Tex. 1995), and the
respondent was ordered to release Guerra unless the State began
retrial proceedings by arraigning him within 30 days. Our court
stayed the judgment.
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II.
As stated, the physical evidence led directly to Carrasco as
Officer Harris’ murderer. An obvious, critical question is why, if
Guerra instead shot the Officer, the murder weapon (not to mention
the Officer’s service revolver) was found under Carrasco’s body one
and one-half hours after the Officer was shot. At oral argument,
the respondent espoused the theory that, when Guerra and Carrasco
exited their vehicle after the Officer pulled up behind them, they
picked up each other’s weapons, and then exchanged them after the
murder. In light of this theory, it goes without saying that the
next question that follows immediately is why, if Guerra shot the
Officer, Carrasco would have been willing to take back and keep a
weapon just used to kill a policeman. Among other obvious reasons
for not wanting to be found with a murder weapon is the fact that
it is common knowledge that anyone who kills a law enforcement
officer will be quickly, vigorously, and aggressively pursued, as
reflected by the events in this case.
The State relied on this exchanged weapons theory at trial.
In closing argument, the prosecutor stated:
I don’t have to prove to you how ... Guerra
came in possession of that nine-millimeter
pistol....
....
There is no way that I had any type of
equipment set up inside of that vehicle to
show you what was done inside that vehicle and
how the weapons could have gotten into this
man’s [Guerra’s] hands, but you know one thing
from listening to the evidence, and you know
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one thing from listening to when Ricardo
Guerra testified. He didn’t always keep his
pistol tucked into his belt.
Do you recall, right towards the end of
his testimony, I asked him, “When you went
into the store to get those Cokes [before the
shooting], did you still have that pistol
tucked inside your belt with your shirt
covering it?”
“No, I put it under the seat,” and I
think you can use your common sense ....
Do you think these guys are driving
around and they’ve got those guns tucked in
their belts? They take them out and set them
on the seat ....
Do you think perhaps when they got out of
the car, they picked up the wrong gun?
The record, however, contains little, if any, evidence to support
this theory. Obviously, this was a critical fact issue at trial.
As discussed infra, the State’s non-disclosure of exculpatory
information concerning this issue was one of the bases upon which
the district court granted habeas relief.
At trial, Guerra testified that, on the night of the shooting,
he and Carrasco went to the store; that Carrasco had a nine
millimeter pistol which he was carrying at his belt; that he
(Guerra) also was carrying a gun; that he put his gun under the car
seat when he went into the store; that he put it back in his
trousers when he got back to the car; and that the gun was in his
belt when he got out of the car after Officer Harris arrived at the
intersection.
On cross-examination at trial, Guerra denied that he and
Carrasco took their guns out of their belts and put them on the
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seat while they were driving around. He testified further that
Carrasco, whom he referred to by the nickname “Werro” (spelled
various ways in the record; according to the respondent at oral
argument, it meant “the blond one” or “the light-skinned one”),
shot Officer Harris and took the Officer’s gun; that they ran back
to Guerra’s residence (4907 Rusk Street); and that, when they
arrived, Carrasco had two weapons -- his own (the nine millimeter)
and the Officer’s.
Two of Guerra’s roommates testified at trial that, shortly
after Officer Harris was shot, Carrasco ran into the house and said
that he had killed a policeman; and that Carrasco had the
policeman’s gun in his belt and another gun in his hand. One
roommate testified further that, when Guerra arrived a minute or
two later, Guerra said that Carrasco had just killed a policeman.
Two of the State’s strongest witnesses at trial were Jose
Armijo, Jr. (the then ten-year-old son of the man fatally wounded
at the same intersection immediately after Officer Harris was
killed), who testified that Guerra shot Officer Harris and his
father, and Hilma Galvan, who testified that she saw Guerra shoot
Officer Harris. Neither testified, however, at the federal
evidentiary hearing.
The district court held that Guerra's due process rights were
violated based on findings that, inter alia, (1) police and
prosecutors threatened and intimidated witnesses in an effort to
suppress evidence favorable and material to Guerra's defense; (2)
police and prosecutors used impermissibly suggestive identification
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procedures, such as permitting witnesses to see Guerra in
handcuffs, with bags over his hands, prior to a line-up, permitting
witnesses to discuss identification before, during, and after the
line-up, conducting a reenactment of the shooting shortly after it
occurred so that witnesses could develop a consensus view, and
using mannequins of Guerra and Carrasco at trial to reinforce and
bolster identification testimony; (3) police and prosecutors failed
to disclose material, exculpatory evidence to the defense; (4)
prosecutors engaged in misconduct at trial, including soliciting
and encouraging witnesses to overstate or understate facts, falsely
accusing a defense witness of either being drunk or having “smoked
something” because he yawned during his testimony, questioning a
defense witness about an extraneous murder which the prosecutors
knew was a false rumor, and making improper closing argument; and
(5) a court interpreter inaccurately translated witnesses' trial
testimony.
Because the state habeas court did not make findings of fact,
the statutory presumption of correctness for such findings is not
in play. (The 28 U.S.C. § 2254(d) presumption of correctness has
been redesignated as § 2254(e)(1) in the Antiterrorism and
Effective Death Penalty Act of 1996, PUB. L. NO. 104-132, § 104(3),
110 Stat. 1214, 1219 (1996).) In fact, the only issue raised here
is the contention that “the district court’s factual findings that
the police and prosecutors engaged in misconduct depriving Guerra
of due process ... are clearly erroneous.” As a result, the
respondent conceded at oral argument that, if those findings are
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not clearly erroneous, then a due process violation occurred.
(Inconsistent with the statement of the issue and the concession at
oral argument, the respondent’s brief contains assertions that
certain factual findings, even if not clearly erroneous, are
legally irrelevant. We conclude that habeas relief is warranted by
legally relevant factual findings that are not clearly erroneous.)
To restate the well-known standard, a factual finding is
clearly erroneous “when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)
(citation omitted). Along that line, in a case such as this, which
turns almost exclusively “on determinations regarding the
credibility of witnesses, [FED. R. CIV. P.] 52(a) demands even
greater deference to the trial court's findings.” Id. at 575.
Similarly, “[w]here the court's finding is based on its decision to
credit the testimony of one witness over that of another, that
finding, if not internally inconsistent, can virtually never be
clear error.” Schlesinger v. Herzog, 2 F.3d 135, 139 (5th Cir.
1993) (internal quotation marks and citation omitted). Three
examples more than suffice to demonstrate why, based on our review
of the record, there are sufficient legally relevant, non-clearly
erroneous findings of fact to warrant habeas relief.
The district court found that, in interviews with police and
prosecutors, three witnesses, all then under the age of 18
(Herlinda Garcia (14), Patricia Diaz (17), and Frank Perez (17)),
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gave police and prosecutors material exculpatory information that
was not disclosed to the defense. Such non-disclosure is violative
of due process if “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” See United States v.
Bagley, 473 U.S. 667, 682 (1985) (opinion of Blackmun, J.); id. at
685 (White, J., concurring in part and concurring in judgment); see
also Kyles v. Whitley, __ U.S. __, 115 S. Ct. 1555 (1995). As
noted, for these three examples, because, with slight exception,
the respondent presents only a factual issue, our review is a most
narrow one -- were the findings of fact underlying a due process
violation because of the non-disclosure clearly erroneous.
Garcia, who identified Guerra at trial as Officer Harris’
murderer, testified instead at the federal evidentiary hearing that
she told police and prosecutors that she saw Carrasco pull
something out of his trousers and point at Officer Harris with both
hands clasped together in front of him; that Carrasco was standing
a “couple of feet” away from the Officer; that she saw flames
coming out of Carrasco's hands; and that, when she heard the shots,
she saw Guerra leaning toward the police car, near the front, with
his empty hands on the hood. This information was not included in
Garcia's written statement, nor was it disclosed to the defense.
Garcia, who, as noted, was 14 years of age at the time of the
shooting, testified further that she was intimidated into
identifying Guerra as the shooter by police warnings that her
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common-law husband, a parolee who was over 18 years of age, could
be adversely affected if she did not cooperate.
The respondent contends that Garcia's testimony is not
credible because her written statements prepared by the police were
consistent with her trial testimony, even though she had not read
her statements before trial, and because, if the police were trying
to coerce witnesses to identify Guerra as the shooter, they would
not have allowed Garcia to describe the shooter, both in her
statement and at trial, as having blond hair and wearing a brown
shirt and brown trousers. (Guerra had dark hair and was wearing a
green shirt and blue jeans at the time of the shooting; Carrasco
also had dark hair (but, as noted, was commonly referred to as
“Werro”, the “blond one” or “light-skinned one”) and was wearing a
purple or maroon shirt and brown trousers.)
Finding that Garcia’s habeas testimony was credible, the
district court found further that she had been intimidated by
police and prosecutors, and that the police omitted material
exonerating information from her written statement. We will
declare testimony incredible as a matter of law only when it “is so
unbelievable on its face that it defies physical laws.” United
States v. Casteneda, 951 F.2d 44, 48 (5th Cir. 1992) (internal
quotation marks and citation omitted). As the district court
noted, Garcia’s testimony is consistent with the physical evidence
that Carrasco, rather than Guerra, shot Officer Harris.
Accordingly, we cannot conclude that the court clearly erred by
finding that Garcia told the truth at the evidentiary hearing.
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Patricia Diaz, who, as noted, was 17 years of age when she
testified at trial, testified at the evidentiary hearing that she
told police and prosecutors that, an instant after she heard shots,
she saw Guerra on the driver's side of the police car, near the
front, facing that car, with his empty hands on its hood, as if he
were about to be searched; and that she did not see anyone shoot
Officer Harris. But, her description of Guerra's location and his
empty hands was not included in her written statements prepared by
the police. Diaz testified further that, contrary to what is
included in her first written statement, she did not tell the
police that she saw a man from Guerra and Carrasco’s car “pointing
a gun in the direction of the police car, and I saw him shoot four
times at the police car”; nor, contrary to what is included in her
second written statement, did she tell the police, after the line-
up, that she saw Guerra “with his hands outstretched, and I guess
he had a gun in his hands”. Diaz testified that she signed her
statements without reading them because she was tired and because
she was frightened by police threats to take her infant daughter
from her if she did not cooperate.
The respondent maintains that Diaz's habeas testimony is not
credible because, again, her trial testimony was consistent with
her statements, even though she never read them. The respondent
asserts that if, as Diaz testified at the evidentiary hearing, she
had demonstrated at trial how Guerra was “pointing” by stretching
her arms out in front of her with her palms open and down, the
prosecution would have clarified her testimony, or the defense
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would have capitalized on it. The district court found, however,
that Diaz's trial testimony was the product of police intimidation,
and was tainted by the prosecutor's inclusion in his questions of
incorrect statements of Diaz's prior testimony. Again, because
there is evidence in the record to support these findings, we
cannot conclude that they are clearly erroneous. Restated, “[i]f
the district court's account of the evidence is plausible in light
of the record reviewed in its entirety, the court of appeals may
not reverse it even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence differently.”
Anderson, 470 U.S. at 573-74.
Finally, Frank Perez, who, as noted, was 17 years of age when
he testified at trial, testified at the federal evidentiary hearing
that it “could have been anywhere from 30 seconds to a minute and
a half” after he heard gunshots that he saw two men run past his
house; but, he was “not really sure exactly how long it was”.
Perez’s statement to the police the day after the shooting reports
that he saw a Mexican American male run past his house “[j]ust a
short time after the gun shots”; at trial, he testified that “it
might have been a minute or less than that, or maybe a little over
a minute”, that he “couldn’t really place the time”.
Perez testified further at the federal hearing that he told
the police and prosecutors that he could not identify the first
man, who appeared to have been running on the south side of Walker
Street (as noted, this was one of the streets forming the
intersection where the shooting occurred); that the second man,
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whom he identified as Carrasco, appeared to have been running on
the north side of that street; that, as Carrasco ran past, he
pointed his left hand at Perez; that Carrasco put his left hand
behind his back and then dropped an object that looked like a nine
millimeter gun with a clip; that the object hit the street, making
a metallic scraping sound; and that Carrasco picked up the object
with his left hand and continued running down the street. Perez's
written statement, prepared by the police, did not include that
Carrasco appeared to be coming from the north side of Walker
Street, or that the gun appeared to be a nine millimeter, or that
Carrasco used his left hand both to point the gun at Perez and to
pick up the gun. The word “gun” was typed in Perez's written
statement, but, according to Perez, was changed to “object” after
the police told him not to use the word "gun" unless he was 100%
certain that the object was one.
The respondent does not challenge Perez's credibility;
instead, he contends that, because the defense had Perez's written
statement -- with “gun” changed to “object” -- when it cross-
examined him at trial, the district court erred by finding that the
prosecution suppressed Perez's statement that Carrasco dropped a
gun. But, the respondent does not address the other information
that the district court found to have been omitted from Perez's
statement (that Carrasco appeared to be coming from the north side
of Walker Street, that the gun appeared to be a nine millimeter,
and that Carrasco used his left hand to point the gun at Perez and
to pick it up after he dropped it). Obviously, that information
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was material, because, according to it, Carrasco had the nine
millimeter murder weapon shortly after the shooting. Moreover, the
information is consistent with other evidence presented at the
federal evidentiary hearing that there was a scratch on the nine
millimeter weapon, consistent with it having been dropped; that the
shooter ran from the scene on the north side of Walker Street; and
that the shooter was left-handed (there was evidence at the federal
hearing that Guerra is right-handed; this was not brought out at
trial). As noted, the respondent challenges neither the
correctness of the district court’s factual finding that this
information was suppressed, nor its materiality.
These three examples of non-disclosure, without more, are
sufficient, on the facts of this case, to support a due process
violation mandating habeas relief. We need not discuss further
examples of the lack of clear error in the district court's
detailed factual findings. In sum, we are satisfied that more than
sufficient non-clearly erroneous, legally relevant findings of fact
support such relief.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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