Jesse Luna v. Dr. George J. Beto, Director, Texas Department of Corrections

391 F.2d 329, 1967 U.S. App. LEXIS 5662

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 11, 1967
• Docket: 23813_1
• Status: Published

Opinions

RIVES, Circuit Judge:

Luna was convicted in the Criminal District Court of Harris County, Texas, of the offense of selling heroin and was sentenced to imprisonment for 25 years. The judgment of conviction was affirmed by the Court of Criminal Appeals of Texas.¹ As shown in the opinion of that court, the sale of the narcotic drug was alleged to have been made to John William Gober, an ex-convict. That opinion details how Gober was the principal witness for the State and his testimony as to effecting the sale was corroborated by officers Hightower and McMannes, who observed him from a distance with field glasses. Luna’s application for habeas corpus to the Texas Court of Criminal Appeals was denied without opinion on November 9, 1965. On February 9, 1966 Luna filed his application for habeas corpus in the federal district court. The principal grounds for his application are: (1) The State knowingly permitted the witness Gober to testify falsely. (2) The State knowingly suppressed evidence beneficial to the defendant Luna. (3) The State court at the instance of the prosecuting attorney denied the defendant Luna his right adequately to cross-examine the witness Gober. After a full hearing, the district court entered an able opinion and denied the application for habeas corpus. We reverse.

All three of the grounds for the application are based upon the following parts of the cross-examination of the witness Gober:

“Q. You certainly have no official capacity with the Houston Police Department, do you — are you a police officer?

“A. No sir, I’m not.

“Q. You have no official capacity with them, do you, Gober?

“A. No sir, I do not.

“Q. Are you paid by them?

“A. No sir.

“Q. Now, Gober, you admitted on the stand, in answer to questions, that you have been convicted of the crime of murder without malice in 1955, is that correct?

“A. Yes sir.

“Q. You have been charged * * * “MR. STOVER: Your Honor, I object to any questions about what this man had been charged with. Convictions are all that he can ask him about as Counsel well knows.

“MR. TUCKER: I want to ascertain the number of charges that was in Harris County, Your Honor.

“THE COURT: Just convictions, please. You know rules.

“MR. TUCKER: Yes, Your Honor.

“MR. TUCKER CONTINUES:

“Q. I ask you if you have been convicted of burglary and felony theft here?

“A. Yes sir.

“Q. What other indictment — have you been under any other indictments ?

“MR. STOVER: I object to that, Your Honor, and asked that Counsel be instructed to abandon this line of questioning.

“THE COURT: That is sustained.

“MR. TUCKER CONTINUES:

“Q. How long have you been working with or for the Houston Police Department?

“A. I haven’t been working with the Houston Narcotics Squad, the Police Department Division, since sometime in July, the middle of July.

“Q. Are you addicted to the use of narcotics ?

“A. No, I am not.

“Q. You are not addicted to the use of narcotics ?

“A. No sir.

“Q. How many cases have they filed on you — do they have over you right now?

“A. I don’t have any pending cases against me.

“Q. How many times have they caught you with narcotics?

“MR. STOVER: I object to that ■ — it would be immaterial.

“THE COURT: That is sustaintained.

“MR. STOVER: Counsel well knows the rules, Your Honor, and I am going to object to his continuing * * *

“THE COURT: Counsel, please pay attention — you know what is admissible, and you know what is not admissible. Please don’t ask any more questions along that line.

“MR. TUCKER: Yes sir, Your Honor.”

The undisputed facts reveal that when Gober was arrested for a felony — the unlawful possession of narcotics, he was promised by police officers that, if he would cooperate by obtaining evidence against narcotic peddlers, the police officers would “give him whatever help they could with his case.” Gober agreed and was released on bond. For several months he assisted the police by purchasing narcotics from peddlers. The appellee admits that at times officers advanced to Gober small sums of money.²

Gober testified at the trials of several defendants, including Luna, who were arrested for selling narcotics to Gober. Luna’s case was the first to be brought to trial.

Luna’s first contention, that the State knowingly permitted Gober to testify falsely, is based principally upon the answers to two questions included in the parts of his cross-examination heretofore quoted. (1) “Q. Are you paid by them [the police officers] ? A. No sir.” (2) “Q. How many cases have they filed on you — do they have over you right now? A. I don’t have any pending cases against me.” The district court found that, when Gober gave a negative answer to the question marked (1), it could not be considered perjury. We agree with that finding, but would observe that the deception was no less damaging to Luna because it was unintentional. See Barbee v. Warden, Maryland Penitentiary, 4 Cir. 1964, 331 F.2d 842, 846. However, we need not determine whether that answer alone should call for a reversal, for we further agree with the district court that the more substantial basis for Luna’s first contention is Gober’s answer to the question marked (2). As found by the district court,

“It is not disputed by the Respondent that this reply was not a correct statement of the facts. Gober had been arrested in July, 1963, and a complaint was filed by officers Hightower and McMannes in a Justice of the Peace Court charging him with possession of narcotics. He was released on $1,-000.00 bond. His case had twice been set for examining trial and in each instance continued at the request of one of the arresting officers. The complaint was still pending at the time of Petitioner’s trial in November, 1963.”

The district court held that “the evidence in this case establishes that the prosecutor, Mr. Stover, had no actual knowledge of the promises made by the police officers * * and further that,

“Whether the knowledge of the police officers that the promises had been made to Gober should properly be imputed to the prosecuting attorney under the rationale of the Fourth Circuit in Barbee v. Maryland, 331 F.2d 842 (1964), need not be considered, as it is the conclusion of the Court that, under the facts in the instant case, the false testimony complained of could not in any reasonable likelihood have affected the judgment of the jUry if if if

Mr. Stover testified positively and under vigorous cross-examination to a complete lack of knowledge of any pending charge against Gober or of any promise made by the police officers. There is no reason to doubt the truthfulness of his testimony.

The police officers who had knowledge of the pending charge against Gober and who had made the promise to him were excluded from the courtroom during Luna’s trial because they were to be witnesses. Hence, they did not hear Gober testify that there were no pending cases against him. The prosecuting attorney had not inquired and the police officers had failed to reveal to him their promise to “give him [Gober] whatever help they could with his case” in exchange for his cooperation in obtaining evidence against narcotic peddlers.

Nothwithstanding the foregoing circumstances, we think that the State must be held responsible for permitting the witness Gober to testify falsely and for failing to reveal material evidence reflecting upon the credibility of the witness Gober. What was so well said by Chief Judge Sobeloff writing for the Fourth Circuit in Barbee v. Warden, Maryland Penitentiary, 1964, 331 F.2d 842, 846, is directly pertinent to the decision of this appeal:

“Nor is the effect of the nondisclosure neutralized because the prosecuting attorney was not shown to have had knowledge of the exculpatory evidence. Failure of the police to reveal such material evidence in their possession is equally harmful to a defendant whether the information is purposely, or negligently, withheld. And it makes no difference if the withholding is by officials other than the prosecutor. The police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State’s Attorney, were guilty of the nondisclosure. If the police allow the State’s Attorney to produce evidence pointing to guilt without informing him of other evidence in their possession which contradicts this inference, state officers are practicing deception not only on the State’s Attorney but on the court and the defendant. ‘The crudest lies are often told in silence.’ If the police silence as to the existence of the reports resulted from negligence rather than guile, the deception is no less damaging.

“The duty to disclose is that of the state, which ordinarily acts through the prosecuting attorney; but if he too is the victim of police suppression of the material information, the state’s failure is not on that account excused. * * * ” ³

Of course, the State may not knowingly use false evidence to obtain a conviction.⁴ The district court recognized that principle, but held that “the false testimony complained of could not in any reasonable likelihood have affected the judgment of the jury.” Since the district court’s decision, and indeed very recently, the Supreme Court has adopted the test “that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 decided Feb. 20, 1967.

Applying that standard, we have no doubt that the error in this case was not harmless to Luna. Gober was the principal witness, the one to whom the alleged unlawful sale was made. We cannot say beyond a reasonable doubt that, if the jury had been informed of the pending charge against Gober and of the police officers’ promise to “give him whatever help they could with his case” in exchange for his cooperation in obtaining evidence against narcotic peddlers, such evidence may have been sufficient to raise in the minds of the jurors a reasonable doubt as to Luna’s guilt.

As to Luna’s third contention that the court at the instance of the prosecution denied him the right adequately to cross-examine the witness Gober, the district court called attention that

“While such evidence [of prior pending charges] may be admissible in an attempt to prove prejudice or bias on the part of a witness or to show his motives for testifying, counsel for Petitioner did not apprise the Court of what he intended to prove, nor did he inform the Court that Gober had been charged, or of any purposes for which he thought this evidence might be admissible.”

We do not think that is a sufficient answer to the trial court’s limitation on the defendant’s right of cross-examination. Luna’s counsel did not know of the pending charges nor of the promise of the police officers. He was probably misled by Gober’s admittedly false answer that there was no pending charge against him. As to counsel’s failure to inform the court of the purposes for which he thought this evidence might be admissible, we agree with what Judge Sobeloff said for the Fourth Circuit in Barbee v. Warden, Maryland Penitentiary, supra, 331 F.2d at 846: “In gauging the nondisclosure in terms of due process, the focus must be on the essential fairness of the procedure and not on the astuteness of either counsel.”

In brief, we sustain each of the appellant’s three contentions of denial of due process.

The judgment of the district court is reversed and the case remanded for the issuance of a writ of habeas corpus, unless the State elects to re-try Luna within a reasonable time.

Reversed and remanded with directions.

1 . Luna v. State of Texas, Tex.Crim.App.1965, 387 S.W.2d 896.

2 . The amounts ranged from $3.00 to $5.00, and one officer testified that considering the number of days Gober spent assisting the police investigators, the sums advanced were not enough to compensate him for the time he was absent from his regular job.

4 . Mooney v. Holohan, 1935, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Pyle v. State of Kansas, 1942, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; Napue v. People of State of Illinois, 1959, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; Brady v. State of Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed. (decided Feb. 13, 1967); Giles v. State of Maryland, 386 U.S. 66, 17 L.Ed.2d 737 (decided Feb. 20, 1967); Mosley v. Dutton, 5 Cir. 1966, 367 F.2d 913; Annot. 7 A.L.R.3d 8, 31-36.

3 . See also Evans v. Kropp, E.D.Mich.1966, 254 F.Supp. 218.