Burkhalter v. State

493 S.W.2d 214, 1973 Tex. Crim. App. LEXIS 2764

• Court: Court of Criminal Appeals of Texas
• Decided: February 21, 1973
• Docket: 44675
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

The offense is accomplice to murder with malice; the punishment, life.

Appellant does not challenge the sufficiency of the evidence and, therefore, a detailed recitation of the facts is unnecessary. It suffices to say that appellant, a physician, was indicted as an accomplice to murder with malice in the death of Robert J. Pendleton, a fellow physician. Del Monte Whitehurst, a key prosecution witness, and two others were indicted as principals in the same offense- A companion case is Tucker v. State, Tex.Cr.App., 461 S.W.2d 630.

The primary question in this case, raised by appellant’s first two contentions, is whether the trial court erred in refusing to let the jury hear evidence that the witness Whitehurst’s lawyer had an understanding with the State that if Whitehurst testified without claiming immunity he would not be prosecuted. A special prosecutor admitted that it was the State’s plan to procure witness Whitehurst’s release from all charges when appellant’s trial was over. Further, it was part of the plan that the State would try Whitehurst if the defense were to request immunity either in open court or otherwise. Thus, the testimony was that the arrangements were to be communicated to appellant’s counsel, but not directly to appellant himself.

Appellant’s strongest contention is based upon the recent opinion of the United States Supreme Court in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In that case, the witness Taliento testified that:

“Nobody told me I wouldn’t be prosecuted ... I believe I still could be prosecuted.”

In summation, the government attorney reiterated that no promises had been made to Taliento.

While the case was on appeal, the petitioner filed a motion for new trial based on newly discovered evidence and attached an affidavit from one of the prosecutors who was not directly involved in the actual trial stating that he had promised Taliento that all prosecutions against him would be dismissed if he testified against an alleged co-conspirator.

The Court ordered a new trial holding that since the government depended almost entirely on Taliento’s testimony, his credibility as a witness was important and the jury was entitled to know about any agreement concerning immunity.

In the case at bar, we have the testimony of the Special Prosecutor that he told Whitehurst’s lawyers that if Whitehurst testified for the State without claiming immunity the prosecutions against him would be dismissed, but warned such lawyers not to convey that information to Whitehurst personally.

Attorney Farmer, Whitehurst’s lawyer, testified as follows:

“But the way we stated it to him [White-hurst] was that if he testified it could help him but that we would not promise him nor could anyone else promise him anything in exchange for his testimony.”

Further,

“ . . .we didn’t tell Whitehurst that if he testified he would be exonerated from this case or any other case. We merely stated that if he testified it could help him.”

Quoting Farmer’s testimony further:

“Q You did not promise him any particular results, of course.

“A No, sir.”

Arguably, the Giglio opinion has no application in the present case, since there is no showing here that the prosecutor ever spoke directly with or conveyed to White-hurst a direct promise that he would not be prosecuted if he testified for the State.

We have closely examined the Giglio decision and we cannot agree that the case turned on this point. Nowhere does the U.S. Supreme Court make such a distinction and we certainly will not imply one. We quote from Giglio :

“Here the Government’s case depended almost entirely on Taliento’s testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento’s credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.” (emphasis supplied)

The court did not say “any agreement between the witness and the prosecutor” or “in cases where the agreement is directly conveyed to the witness.” Such language unduly restricts the very reasoning behind Giglio: that is, that the jury should have the opportunity to decide the witness’s credibility for themselves.

We recognize the argument that while the witness’s state of mind while testifying and his expectations were not mentioned in Giglio, the court there was faced with a different factual situation. Admittedly, that court was not faced with and did not address a situation where the witness granted immunity was completely ignorant of any agreement as to future prosecution. In our opinion, neither is it clear that this Court is presented with such a case.

The record reveals the following colloquy, heard during the motion for a new-trial :

(Testimony of Whitehurst’s attorney)

“A . . . and we were careful not — I was careful, and I assume Mr. Neisig was, I know he was, we were together, that he didn’t tell Whitehurst that if he testified that he would be exonerated from this case or any other cases. We merely stated that if he testified that it could help him.

“Q If he testified it could help him?

“A If he testified it could help him.

“Q You did not promise him any particular results of course?

“A No, sir.

“Q But you did tell him that if he testified that it could help him?

“A If he wanted to testify, it could possibly help him.

“Q In other words, it would be fair to say that he was allowed to know that if he testified that it could be of benefit to him?

“A It could be.

“Q He was made to know that ?

“A We communicated that to him. But that was as far as we went with this.”

Thus, the record indicates that both Whitehurst and his attorney admitted that, although no direct promise of immunity from prosecution was ever conveyed to Whitehurst, he was told that his testimony “could help his case.” We find it unrealistic to draw a line between an outright promise not to prosecute and a very real inference not to prosecute.¹ The suggestions and innuendos in the present case bring appellant within the rule announced in Giglio.

Further, evidence that witness Whitehurst was not completely in the dark is revealed by the record, in reference to the visit by Phil Greene. Mr. Greene, an attorney, allegedly called on Whitehurst during the course of the trial and urged him to seek immunity before testifying. With Whitehurst testifying, the record reflects :

“A Well, it was a lawyer who come up to visit me the other night who wanted to represent me. He told me that he would get me immunity out of this murder case and would handle all of the other charges for me. He almost demanded that I come down here and take immunity. It took me two hours last night to run him off.

* ⅜ * # * *

“Q You deny that you are expecting that?

“A I was offered that last night. I turned it down.

“Q So now your testimony before the jury is that you were offered that you could go absolutely scot-free, but that you turned it down ?

“A Yes, sir.

“Q You don’t want to be scot-free, right ?

“A Well, I didn’t want to look at it the way he was trying to do it.”

Surely, it must have struck the trial judge as unusual, to say the least, that a co-indictee in a murder case would “run off” an attorney who suggested that he should go into open court and demand immunity before testifying. One reasonable inference to be drawn from Whitehurst’s actions is that he knew of the State’s plan not to prosecute, but also knew not to mention it for fear of jeopardizing the entire scheme. Whether or not this is true is not for us to decide. The point is that the jury should have been given the opportunity to judge Whitehiirsf s credibility for themselves. The trial court’s refusal to permit disclosure of the State’s plan not to prosecute Whitehurst deprived the jury of that function.

Further, we find that such a deprivation amounted to a denial of due process. It is axiomatic that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction. This rule does not cease to apply merely because the false testimony goes only to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). As recognized in Napue, the jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence.

We fully appreciate the State’s position that there was no false evidence here, since Whitehurst did not know that he would not be prosecuted. Even if we assume this ignorance, arguendo, we find that the prosecutor’s silence as to the plan not to prosecute conveyed an impression to the jury which the State knew to be false and one which should have been corrected. On cross-examination, Whitehurst gave the following testimony:

“Q And you fully expect that when this case is over, not only will you be out of this case but all other charges against you?

“A No, sir.”

Appellant was not accorded due process of law when he was denied the opportunity to refute the inevitable impression that such testimony had on the jurors; that is, that Whitehurst would obtain no reward for testifying. Defense counsel should have been permitted to place the parties in proper perspective and develop further the interests involved.² cf. Alcorta v. Texas, 355 U.S. 32, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957).

The State answers that if there was any error in refusing to let the jury hear the disputed testimony, it was harmless error. We disagree.

Whitehurst was the only source of direct testimony tending to establish the alleged main fact of appellant’s advising the commission of the offense charged in this case. As previously stated, it is of no consequence that the falsehood bore upon the witness’ credibility rather than directly upon appellant’s guilt.

“A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth. * * * That the district attorney’s silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair.” Napue, supra, 360 U.S. at p. 269, 79 S.Ct. at p. 1177.

We cannot pretend to be oblivious to the time and expense involved in the presentation of this cause; the voluminous record now before this Court is sufficient evidence of that. Our intent is not to punish the trial court or the prosecutor for the error committed, but rather to avoid an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Our holding today is not to be taken as a ruling that the procedure used by the State here is unconstitutional per se. Certainly, each case must turn on its particular circumstances. In the instant case, the State could easily have preserved Whitehurst’s “unawareness” and, at the same time, protected appellant’s constitutional guarantees. The rule had been invoked at the beginning of the trial. Therefore, the State could have presented testimony before the jury disclosing the plan with Whitehurst’s attorney and thereby have permitted them to judge his credibility. In such a circumstance, and where the witness is indeed non-cognizant of the plan, we would commend the prosecution.

We simply hold that Giglio, supra, is constitutionally dictated and cannot be cleverly circumvented in this case by the scheme used by the State. Due process, perhaps the most fundamental concept in our law, embodies principles of fairness rather than an immutable line drawing as to every aspect of a criminal trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). See also Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).

In light of the disposition of this ground of error, we will not consider appellant’s other grounds.

The judgment is reversed and the cause remanded.

1 . In Giglio, two different affidavits were filed in reference to newly discovered evidence. One affidavit states outright that a promise was made to Taliento that if he testified, he would not be prosecuted. The second affidavit (which the U.S. Supreme Court saw fit to set out in the text of their opinion, rather than in a footnote, as they did with the first affidavit) stated that: “he [the U.S. Attorney] had personally consulted with Taliento and his attorney shortly before trial to emphasize that Taliento would definitely be prosecuted if he did not testify and that if he did testify he would be obliged to rely on the ‘good judgment and the conscience of the government’ as to whether he would be prosecuted.” The court noted that this latter affidavit, standing alone, contains at least an implication that the government would reward the cooperation of the witness, and hence, “tends to confirm rather than refute the existence of some understanding for leniency.” Giglio, supra, 405 U.S. at p. 153, 92 S.Ct. at p. 765, 31 L.Ed.2d at p. 108. It, thus, appears to this Court that even in Giglio, there was some question as to the “directness” and un-equivocality of the agreement not to prosecute.

2 . 1 C. McCormick & R. Ray, Texas Evidence, § 673 (2d ed. 1956) states: “Where an accomplice in the crime with which accused is charged testifies for the prosecution this is a circumstance affecting his credibility. It indicates a probability that he is seeking or has been promised favor at the hands of the State.”