Moore, who was convicted of murder and sentenced to death for
the shotgun slaying of a bartender at a Lansing, Illinois, tavern,
claimed that he was denied a fair trial and due process because the
State failed to make pretrial disclosure of several items of
evidence helpful to the defense, failed to correct false testimony
of one Powell, and succeeded in introducing into evidence a shotgun
that was not the murder weapon. The evidence not disclosed
consisted of a pretrial statement by one Sanders that Moore was
known to him as "Slick" and that he had first met "Slick" some six
months before the killing, and documents and testimony that
established that Moore was not the man known to others in the area
as "Slick." Powell testified that he observed the killing, and the
State did not introduce into evidence a diagram that, Moore claims,
illustrates that Powell could not see the shooting. The State
Supreme Court rejected the claim that evidence had been suppressed
and false evidence had been left uncorrected, and held that the
shotgun was properly admitted into evidence as a weapon in Moore's
possession when he was arrested, and suitable for commission of the
crime charged. Moore also attacked the imposition of the death
penalty for noncompliance with the standards of
Witherspoon v.
Illinois, 391 U. S. 510.
Held:
1. The evidentiary items (other than the diagram) on which Moore
bases his suppression claim relate to Sanders' misidentification of
Moore as "Slick," and not to the identification, by Sanders and
others, of Moore as the person who made incriminating statements in
the Ponderosa Tap. These evidentiary items are not material under
the standard of
Brady v. Maryland, 373 U. S.
83. The diagram does not support Moore's contention that
the State knowingly permitted false testimony to remain
uncorrected, in violation of
Napue v. Illinois,
360 U. S. 264,
since the diagram does not show that it was impossible for Powell
to see the shooting. Pp.
408 U. S.
794-798.
Page 408 U. S. 787
2. Moore's due process claim as to the shotgun was not
previously raised, and therefore is not properly before this Court,
and, in any event, the introduction of the shotgun does not
constitute federally reversible error. Pp.
408 U. S.
798-800.
3. The sentence of death may not be imposed on Moore.
Furman
v. Georgia, ante, p.
408 U. S. 238. P.
800.
42 II.2d 73,
246 N.E.2d
299, reversed in part and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, and REHNQUIST, JJ., joined.
MARSHALL, J., filed an opinion concurring in part and dissenting in
part, in which DOUGLAS, STEWART, and POWELL, JJ., joined,
post, p.
408 U. S.
800.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This state murder case, with the death penalty imposed by a
jury, comes here from the Supreme Court of Illinois. The grant of
certiorari,
403 U. S. 953
(1971), was limited to three of four questions presented by the
petition. These concern the nondisclosure to the defense of
allegedly exculpatory evidence possessed by the prosecution or the
police; the admission into evidence of a shotgun that was not the
murder weapon; and the rejection of eight veniremen who had voiced
general objections to capital punishment. The first and third
issues respectively focus on the application of
Brady
v.
Page 408 U. S. 788
Maryland, 373 U. S. 83
(1963), and
Witherspoon v. Illinois, 391 U.
S. 510 (1968).
I
Petitioner Lyman A. Moore was convicted in 1964 of the
first-degree murder of Bernard Zitek. Moore's appeal to the Supreme
Court of Illinois was held in abeyance while he petitioned the
trial court for post-conviction relief. After a hearing in January,
1967, that petition was denied. Moore's appeal from the denial was
consolidated with his appeal from the conviction and sentence. With
one justice dissenting and another not participating, the Illinois
court affirmed the judgments.
42 Ill. 2d
73,
246 N.E.2d
299 (1969).
II
The homicide was committed on April 25, 1962. The facts are
important:
A. The victim, Zitek, operated a bar-restaurant in the village
of Lansing, southeast of Chicago. Patricia Hill was a waitress
there. Donald O'Brien, Charles A. Mayer, and Henley Powell were
customers.
Another bar called the Ponderosa Tap was located in Dolton, also
southeast of Chicago. It was owned by Robert Fair. William Joyce
was the bartender. One of Fair' customer was Virgle Sanders.
A third bar known as Wanda and Del's was in Chicago. Delbert
Jones was the operator. William Leon Thompson was a patron.
The Westmoreland Country Club was in Wilmette, about 50 miles
north of Lansing. The manager there was Herbert Anderson.
B. On the evening of April 25, Zitek was tending bar at his
place in Lansing. Shortly before 10 p.m., two men, one with a
moustache, entered and ordered beer. Zitek admonished the pair
several time for using profane
Page 408 U. S. 789
language. They continued in their profanity and, shortly, Zitek
ejected them. About an hour later, a man carrying a shotgun
entered. He laid the weapon on the bar and shot and killed Zitek.
The gunman ran out, pursued by patrons, and escaped in an
automobile.
C. At the trial, waitress Hill positively identified Moore as
one of the two men ejected from the bar and as the one who returned
and killed Zitek. She testified that she had a clear and close view
from her working area at the bar, and that she observed Zitek's
ejection of the two men and the shotgun killing an hour later.
D. A second in-court identification of Moore as the man who
killed Zitek was made by the customer Powell. Powell, who at the
time was playing pinochle with others, testified that he observed
Moore enter the bar with a shotgun and shoot Zitek; that, after the
shooting, he pursued Moore; and that, outside the bar, Moore
stopped momentarily, turned, and shouted, "Don't come any further
or I'll shoot you, too."
E. Sanders testified that, on April 27, two days after the
murder, he was in the Ponderosa Tap, and that a customer there,
whom Sanders identified as "Slick," remarked to Sanders that it was
"open season on bartenders" and that he had shot one in Lansing. At
the trial, Sanders identified Moore as the man who was in the
Ponderosa Tap on April 27. Moore was with another man who had a
moustache. The two asked for a ride to Harvey, Illinois. The owner,
Fair, agreed to give them the ride.
F. Fair testified that Moore was one of the two men who
requested and were given the ride; that, during the journey, one of
them was referred to as "Barbee"; and that one said "something
like,
Well, if we hadn't had that trouble with the bartender in
Lansing, we'd have been all right.'"
G. The Ponderosa bartender, Joyce, testified that Sanders
Page 408 U. S. 790
and Fair were in that tavern on April 27; that Moore was there
at the same time; and that he arranged with Fair for Fair to give
Moore and his companion a ride.
It is thus apparent that there were positive in-court
identifications of Moore as the slayer by the waitress Hill and by
the customer Powell, and that there were in-court identifications
of Moore as having been present at the bar in Dolton two days later
by Sanders, by Fair, and by Joyce.
H. Six months after the slaying, in the early morning hours of
October 31, 1962, a Chicago police officer was shot at from a 1957
Ford automobile. Two men fled the scene. The police "staked out"
the car, and several hour later, Moore and a moustached man, later
identified as Jerry Barbee, were arrested when they approached and
entered the vehicle. The automobile proved to be owned by Barbee. A
fully loaded sawed-off 16-gauge shotgun was in the car. [
Footnote 1] The shotgun was introduced
in evidence at Moore's trial. [
Footnote 2] The State conceded that the gun so introduced
was not the murder weapon, and that the State's ballistics
technician, if called, would testify that the waddings taken from
Zitek's body came, in his opinion, from a 12-gauge shotgun
shell.
I. The defense called manager Anderson of the Westmoreland
Country Club as a witness. He testified that Moore had been hired
as a waiter there on April 24 (the day before the murder); that the
club records indicated there was a special party at the club on the
evening of April 25; and that Moore was paid for working
Page 408 U. S. 791
until sometime between 10 p.m. and midnight. The club's
bartender testified to the same effect. Each of these witnesses
nevertheless admitted that he could not remember seeing Moore at
the club that night, but said that he would have known if he had
been absent for any substantial period of time. The club records
also indicated that Moore worked at the club the afternoon of April
27, when, according to the testimony of Sanders, Fair, and Joyce,
Moore was at the Ponderosa Tap in Dolton. [
Footnote 3]
J. O'Brien, a customer at Zitek's, testified for the defense
that he observed Zitek eject two men the evening of the 25th, and
that Moore was not one of them. Although he was in the restaurant
at the time of the homicide, he did not see the person who shot
Zitek. A police officer testified that, in his opinion, O'Brien was
drunk at the time.
III
Prior to the trial, the defense moved for disclosure of all
written statements taken by the police from any witness. The State
agreed to furnish existing statements of prosecution witnesses. At
the post-conviction hearing, Moore argued, and the claim is
presented here, that he was denied a fair trial because six items
of evidence, unknown to him at the time of the trial, were not
produced and, in fact, were suppressed by the State:
A. On April 30, 1962, Sanders gave a statement to the police
that he had met the man "Slick" for the first time "about six
months ago" in Wanda and Del's tavern. Testimony at the
post-conviction hearing by Lieutenant Turbin of the Lansing Police
Department revealed that, at the time of trial, the police
possessed an FBI report
Page 408 U. S. 792
that Moore was in Leavenworth Penitentiary from 1957 to March 4,
1962. That report thus proved that Sanders could not have met Moore
at Wanda and Del's in November, 1961. The defense was not given a
copy of the statement made by Sanders. The prosecuting attorney
asserted at the post-conviction hearing that he did not recall
having seen the statement before or during the trial.
B. On the day Sanders gave his statement, that is, on April 30,
the police raided Wanda and Del's looking for "Slick." "Slick" was
not there, but Jones, the tavern's operator, said that he could
identify "Slick." After Moore was arrested, Jones was not asked by
the police whether Moore was "Slick." The defense was not advised
of the raid until after the trial. At the post-conviction hearing,
Jones testified that Moore was not "Slick." His testimony, however,
was stricken on the ground that it pertained to innocence or guilt,
and was not admissible upon collateral review.
C. After the raid on Wanda and Del's, the police secured from
their files a picture of James E. "Slick" Watts and assigned
Lieutenant Turbin the task of finding Watts. His search was
unsuccessful. Moore asserts that the attempt to find Watts was not
made known to the defense until cross-examination of the Lansing
police chief at the post-conviction hearing.
D. After Moore was arrested on October 31, he was photographed
by the police. The photograph was shown to William Leon Thompson,
the patron of Wanda and Del's. Thompson testified at the
post-conviction hearing that he told Lieutenant Turbin that the
picture "didn't, to the best of my knowledge, resemble the man that
I knew" as "Slick." He identified a picture of Watts as "the Slick
I know." Defense counsel testified that, through the course of the
trial, neither the police
Page 408 U. S. 793
nor the prosecutor advised them about Thompson and his
disclaimer.
E. At the start of the trial, Sanders observed Moore for the
first time since the alleged bragging incident at the Ponderosa
Tap. Sanders remarked to the prosecuting attorney and to police
officers who accompanied him into the courtroom that the person he
knew as "Slick" was about 300 pounds heavier than Moore, and did
not wear glasses. One of the officers responded, "Well, you know
how the jailhouse beans are." Moore contends that he and defense
counsel were not advised of this remark of Sanders until after the
trial had concluded.
F. Mayer, one of the card players at Zitek's at the time of the
murder, gave the police a written statement. On the back of the
statement, Officer Koppitz drew a sketch of the seating arrangement
at the card table. The diagram showed that the corners of the table
pointed north, south, east, and west. Cardplayer Powell was placed
on the southwest side. The bar was about 10 feet north of the
table. The door was to the southwest. Moore argues that the diagram
is exculpatory, and contradicts Powell's testimony that he observed
the shooting. Defense counsel testified that they were not shown
the diagram during the trial.
Moore argues, as to the first five items, that the State did not
comply with the general request by the defense for all written
statements given by prosecution witnesses; that the State failed to
produce the pretrial statement of Sanders and the other evidence
contradicting Sanders' identification of Moore as "Slick"; and that
the evidence not produced was material and would have been helpful
to his defense.
The Illinois court held that the State had not suppressed
material evidence favorable to Moore, that the
Page 408 U. S. 794
record shows that the prosecution presented its entire file to
defense counsel, and that no further request for disclosure was
made. 42 Ill. 2d at 8081, 246 N.E.2d at 304. Moore submits here the
alternative claim that a specific request is not an "indispensable
prerequisite" for the disclosure of exonerating evidence by the
State, and that the defense could not be expected to make a request
for specific evidence that it did not know was in existence.
In
Brady v. Maryland, 373 U. S. 83
(1963), the petitioner and a companion were found guilty by a jury
of first-degree murder and were sentenced to death. In his
summation to the jury, Brady's counsel conceded that Brady was
guilty, but argued that the jury should return its verdict "without
capital punishment." Prior to the trial, counsel had requested that
the prosecution allow him to examine the codefendant's
extrajudicial statement. Some of these were produced, but another,
in which the codefendant admitted the actual homicide, was
withheld, and did not come to Brady's notice until after his
conviction. In a post-conviction proceeding, the Maryland Court of
Appeals held that this denied Brady due process of law, and
remanded the case for retrial on the issue of punishment. This
Court affirmed. It held
"that the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution."
373 U.S. at
373 U. S.
87.
The heart of the holding in
Brady is the prosecution's
suppression of evidence, in the face of a defense production
request, where the evidence is favorable to the accused and is
material either to guilt or to punishment. Important, then, are (a)
suppression by the prosecution after a request by the defense, (b)
the evidence's favorable
Page 408 U. S. 795
character for the defense, and (c) the materiality of the
evidence. These are the standards by which the prosecution's
conduct in Moore's case is to be measured.
Moore's counsel asked several prosecution witnesses if they had
given statements to the police. Each witness (Hill, Powell, Fair)
who had given a statement admitted doing so, and the statement was
immediately tendered. The same inquiry was not made of witness
Sanders. He was the only state witness who was not asked the
question. At the post-conviction hearing, the inquiry was made.
Sanders admitted making a statement to the police, and the
statement was tendered.
The record discloses, as the Illinois court states, 42 III.2d at
80, 246 N.E.2d at 304, that the prosecutor at the trial submitted
his entire file to the defense. The prosecutor, however, has no
recollection that Sanders' statement was in the file. The
statement, therefore, either was in that file and not noted by the
defense or it was not in the possession of the prosecution at the
trial.
We know of no constitutional requirement that the prosecution
make a complete and detailed accounting to the defense of all
police investigatory work on a case. Here, the elusive "Slick" was
an early lead the police abandoned when eyewitnesses to the killing
and witnesses to Moore's presence at the Ponderosa were found.
Unquestionably, as the State now concedes, [
Footnote 4] Sanders was in error when he indicated to
the police that he met Moore at Wanda and Del's about six months
prior to April 30, 1962. Moore's incarceration at Leavenworth until
March shows that conclusion to have been an instance of mistaken
identity. But the mistake was as to the identification of Moore as
"Slick," not as to
Page 408 U. S. 796
the presence of Moore at the Ponderosa Tap on April 27.
[
Footnote 5]
"Sanders' testimony to the effect that it was Moore he spoke
with at the Ponderosa Tap, in itself, is not significantly, if at
all, impeached. Indeed, it is buttressed by the testimony of
bartender Joyce and operator Fair, both of whom elaborated the
incident by their description of the man, and by Moore's request
for a ride to Harvey, Illinois, Fair's providing that ride, and
Fair's hearing, on that trip, the reference to one of the men as
'Barbee,'"
and a second reference to trouble with a bartender in
Lansing.
The other four of the first five items -- that Jones told police
he could identify "Slick" and subsequently testified that Moore was
not "Slick"; that the police had a picture of Watts and assigned
the lieutenant, unsuccessfully, to find Watts; that Thompson had
been shown a picture of Moore and told the police that Moore was
not "Slick"; and that, on the day of the trial, Sanders remarked
that the man he knew as "Slick" looked heavier than Moore -- are in
exactly the same category. They all relate to "Slick," not Moore,
and quite naturally go off on Sanders' initial misidentification of
"Slick" with Moore.
None of the five items serves to impeach in any way the positive
identification by Hill and by Powell of
Page 408 U. S. 797
Moore as Zitek's killer, or the testimony of Fair and Joyce that
Moore was at the Ponderosa Tap on April 27, or the testimony of
Fair that the moustached Barbee was accompanying Moore at that
time, and that one of the two men made the additional and
undisputed admission on the ride to Harvey. We conclude, in the
light of all the evidence, that Sanders' misidentification of Moore
as Slick was not material to the issue of guilt.
The remaining claim of suppression relates to the diagram on the
back of Mayer's statement to the police. [
Footnote 6] Moore contends that the diagram shows that
Powell was seated with his back to the entrance to Zitek's, and
thus necessarily contradicts his testimony that he was looking
toward the entrance as he sat at the card table, and that the State
knowingly permitted false testimony to remain uncorrected, in
violation of
Napue v. Illinois, 360 U.
S. 264 (1959).
In
Napue, the principal prosecution witness at Napue's
murder trial was an accomplice then serving a sentence for the
crime. He testified, in response to an inquiry by the prosecutor,
that he had received no promise of consideration in return for his
testimony. In fact, the prosecutor had promised him consideration,
but he did nothing to correct the witness' false testimony. This
Court held that the failure of the prosecutor to correct the
testimony, which he knew to be false, denied Napue due process of
law, and that this was so even though the false testimony went only
to the credibility of the witness.
See
Page 408 U. S. 798
also Miller v. Pate, 386 U. S. 1 (1967),
and
Alcorta v. Texas, 355 U. S. 28
(1957).
We are not persuaded that the diagram shows that Powell's
testimony was false. The officer who drew the diagram testified at
the post-conviction hearing that it did not indicate the direction
in which Powell was facing or looking at the time of the shooting.
Powell testified that his position at the table gave him a view of
the bartender; that, at the moment, he could not bid in the
pinochle game and had laid his hand down and was looking toward the
door when Moore walked in. There is nothing in the diagram to
indicate that Powell was looking in another direction or that it
was impossible for him to see the nearby door from his seat at the
card table. Furthermore, after the shooting he pursued Moore but
stopped when the man warned him that he, too, might be shot.
In summary, the background presence of the elusive "Slick,"
while somewhat confusing, is, at most, an insignificant factor. The
attempt to identify Moore as "Slick" encountered difficulty, but
nothing served to destroy the two-witness identification of Moore
as Zitek's assailant, the three-witness identification of Moore as
present at the Ponderosa Tap, the two-witness identification of
Moore as one of the men who requested and obtained a ride from the
Ponderosa in Dolton to Harvey, Illinois, and Fair's testimony as to
the admission made on that ride.
We adhere to the principles of Brady and Napue, but hold that
the present record embraces no violation of those principles.
IV
The 16-gauge shotgun was admitted into evidence at the trial
over the objection of the defense that it was not the murder
weapon, that it had no connection with the crime charged, and that
it was inadmissible under Illinois
Page 408 U. S. 799
law. [
Footnote 7] During his
closing argument to the jury, the prosecuting attorney stated that
the 16-gauge shotgun was not used to kill Zitek, [
Footnote 8] but that Moore and his companion,
Barbee, were "the kind of people that use shotguns." [
Footnote 9]
The Supreme Court of Illinois held that the shotgun was properly
admitted into evidence as a weapon in Moore's possession at the
time of his arrest, and was a weapon "suitable for the commission
of the crime charged . . . even though there is no showing that it
was the actual weapon used." 42 Ill. 2d at 78, 246 N.E.2d at 303.
Moore claims that the gun's introduction denied him due
process.
Of course, the issue whether the shotgun was properly admitted
into evidence under Illinois law is not subject to review here. The
due process claim, however, appears to be raised for the first time
before us. There is no claim by Moore, and there is nothing in the
record to disclose, that due process was argued in the state
courts. We could conclude, therefore, that the issue is not one
properly presented for review.
In any event, we are unable to conclude that the shotgun's
introduction deprived Moore of the due process of law guaranteed
him by the Fourteenth Amendment. The 16-gauge shotgun, found in the
car, was in the constructive possession of both Moore and Barbee
when they were arrested after the shooting incident on October 31.
There is substantial other evidence in the record
Page 408 U. S. 800
that a shotgun was used to kill Zitek, and that he suffered the
wounds one would expect from a shotgun fired at close range. The
testimony as to the murder itself, with all the details as to the
shotgun wounds, is such that we cannot say that the presentation of
the shotgun was so irrelevant or so inflammatory that Moore was
denied a fair trial. The case is not federally reversible on this
ground.
V
Inasmuch as the Court today has ruled that the imposition of the
death penalty under statutes such as those of Illinois is violative
of the Eighth and Fourteenth Amendments,
Furman v. Georgia,
ante, p.
408 U. S. 238, it
is unnecessary for us to consider the claim of noncompliance with
the
Witherspoon standards. In
Witherspoon, 391
U.S. at
391 U. S. 523
in n. 21, the Court stated specifically "Nor, finally, does today's
holding render invalid the
conviction, as opposed to the
sentence, in this or any other case" (emphasis in
original). The sentence of death, however, may not now be
imposed.
The judgment, insofar as it imposes the death sentence, is
reversed,
Furman v. Georgia, supra, and the case is
remanded for further proceedings.
[
Footnote 1]
This early morning incident was recounted in an earlier trial of
Moore and Barbee for an armed robbery at Harvey, Illinois, on July
27, 1962.
People v. Moore, 35 Ill. 2d
399, 401-402,
220 N.E.2d
443, 411 115 (1966),
cert. denied, 389 U.S. 861
(1967).
[
Footnote 2]
A revolver found at Moore's feet at the time of his arrest and a
shoulder holster then on his person were ruled inadmissible.
[
Footnote 3]
A like alibi defense was submitted at the earlier armed robbery
trial of Moore and Barbee.
People v. Moore, 35 Ill. 2d at
406, 220 N.E.2d at 447.
[
Footnote 4]
Brief for Respondent 4; Tr. of Oral Arg. 28.
[
Footnote 5]
The dissent observes,
post at
408 U. S.
804,
"When confronted with this fact [Moore's imprisonment at
Leavenworth], Sanders indicated that it was impossible that
petitioner [Moore] was the man with whom he had spoken in the
Ponderosa Tavern."
This is a misreading of Sanders' testimony. The question and
Sanders' answer were:
"Q. And did you tell me and also later on, did you tell the
policeman from the State's Attorney's Office that, if you had known
that this fellow, Lyman Moore, was in the Federal Penitentiary
until March 4, 1962, you would definitely not have identified him
as being Slick that you knew?"
"A. If he's in jail, it would have been impossible to be the
same man."
Abstract of Record 296.
[
Footnote 6]
Contrary to the assertion by the dissent that the Mayer
statement, with its accompanying diagram, was never made available
to the defense,
post, at
408 U. S. 803
and
408 U. S. 809,
the trial transcript indicates that, during the cross-examination
of Officer Koppitz, a request was made by the defense for all
written statements taken by the officer from persons in Zitek's
restaurant at the time of the shooting. The court granted the
request, and the record recites that statements of Mayer and others
were furnished to defense counsel.
[
Footnote 7]
See n 2.
[
Footnote 8]
Curiously, the State argues in this Court that it is possible
that the 16-gauge shotgun was the murder weapon. Brief for
Respondent 20-21.
[
Footnote 9]
Later in his closing argument, the prosecuting attorney referred
to the 16-gauge shotgun and stated again that a 12-gauge shotgun
killed Zitek. He argued that a shotgun is not "the most humane type
weapon," and that the death penalty is appropriate in a case in
which a shotgun is used to murder a person.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE
STEWART, and MR. JUSTICE POWELL join, concurring in part and
dissenting in part.
Petitioner was convicted of murder in the Illinois state courts
and sentenced to death. The Supreme Court of Illinois affirmed the
conviction and sentence by a divided court.
42 Ill. 2d
73,
246 N.E.2d
299 (1969). This Court holds that the imposition of the death
sentence violated the principle established today in
Furman v.
Georgia, ante, p.
408 U. S. 238, and
that the sentence must be vacated, but the Court upholds the
underlying conviction. I agree with the majority that the sentence
is invalid, and
Page 408 U. S. 801
join Part V of the opinion of the Court. I also agree that the
introduction of the shotgun into evidence at petitioner's trial did
not violate the Fourteenth Amendment. [
Footnote 2/1]
But I believe that, in failing to disclose to petitioner certain
evidence that might well have been of substantial assistance to the
defense, the State denied him a fair trial.
The opinion of the Court relates at some length the facts
relating to the crime with which petitioner was charged, the
circumstances of his arrest, the course of the trial, and the
developments at the post-conviction hearing. As these facts are
complicated and quite confusing,
Page 408 U. S. 802
I have not reiterated them here. Rather, I have emphasized those
that seem to me to be particularly important, and I have added
several details that are omitted from the Court's opinion.
Two interrelated defenses were raised against the charge of
murder -- alibi and misidentification. Petitioner's theory of the
case was that he was not at the scene when the murder was
committed, and that those witnesses who testified that they saw him
there were confusing him with someone else.
Only two witnesses affirmatively asserted at trial that they saw
the murder and that they could identify petitioner a the assailant.
They were Patricia Hill, a waitress in the victim's bar, and Henley
Powell, a customer. Aside from their testimony, the only other
evidence introduced against petitioner related to statements that
he allegedly made two days after the murder.
There is a problem with the eyewitness testimony of Powell that
did not become apparent until the post-conviction hearing in the
trial court. At trial, he testified as follows:
"The defendant (indicating) came into the tavern while I was at
the table. I first saw him when he walked in the door with a
shotgun. I was sitting at the table along the wall. I was facing
where the bartender was standing, and I also had a view of the man
that walked in the door. I was looking to the west."
Abs. 32. But, at the post-conviction hearing, it was discovered
that police officers who had investigated the murder possessed a
statement by one Charles Mayer, who had been sitting with Powell at
a table in the bar, which contained a diagram indicating that
Powell was seated in a direction opposite that indicated in his
trial testimony.
Page 408 U. S. 803
This diagram was never made available to defense counsel.
[
Footnote 2/2]
Donald O'Brien, who had also been seated at Powell and Mayer's
table, testified at trial and contradicted the testimony of both
Powell and Patricia Hill. Although O'Brien admitted that he did not
actually see the shooting because his back was to the bar, he was
certain that petitioner was not the man who had been ejected from
the victim's bar only an hour before the killing. O'Brien's
testimony greatly undercut the apparent retaliatory motive that the
prosecution attributed to petitioner. [
Footnote 2/3]
Page 408 U. S. 804
Because of the contradictory testimony of those persons who were
present at the scene of the murder, the statements allegedly made
by the petitioner after the crime were crucial to the prosecution's
case. The key prosecution witness in this regard was Virgle
Sanders. He testified that, two days after the murder, he was in
the Ponderosa Tavern, that petitioner (whom he knew as "Slick") was
there also, and that petitioner said "[s]omething about it's season
or open season on bartenders or something like that." Abs. 44. The
bartender also testified that he recognized petitioner as being
present at the same time as Sanders. And the owner of the tavern
stated that he gave petitioner and petitioner's friend a short ride
in his automobile, at the end of which the friend mentioned
something about "trouble with the bartender." Abs. 52.
After his trial and conviction, petitioner learned that, five
days after the murder, Sanders gave a statement to the police in
which he said that he had met "Slick" for the first time about six
months before he spoke to him in the Ponderosa Tavern. As the Court
notes, it would have been impossible for Sanders to have met the
petitioner at the time specified, because petitioner was in federal
prison at that time. At the post-conviction hearing, Sanders said
that he was not positive when he first met the man known as
"Slick," but that he definitely knew it was before Christmas, 1961.
Petitioner was not released from federal custody until March, 1962.
When confronted with this fact, Sanders indicated that it was
impossible that petitioner was the man with whom he had spoken in
the Ponderosa Tavern. Abs. 296. Sanders' trial identification was
further impeached at the post-trial hearing by testimony that,
on
Page 408 U. S. 805
the day of trial, he told police officers that petitioner was
approximately 30 or 40 pounds lighter than he remembered "Slick"
being. Abs. 294.
Sanders' testimony that petitioner and "Slick" were not one and
the same was corroborated at the hearing. The reason that Sanders
could remember the first time that he had met "Slick" was that
"Slick" had been involved in a scuffle with one William Thompson.
Thompson testified at the hearing that he remembered the
altercation, that he knew "Slick," that, prior to the trial, he had
told police officers that petitioner was not "Slick," and that he
remained certain that petitioner and "Slick" were different people.
Finally, Sanders' testimony was corroborated by Delbert Jones, the
owner of the tavern where "Slick" and Thompson scuffled. Jones
testified that he was certain that petitioner was not the man known
as "Slick."
The fact is that Thompson and Jones were both familiar with one
James E. Watts, whom they knew as "Slick," and who looked very much
like the petitioner. The record makes clear that the police
suspected Watts as the murderer and assigned a lieutenant to search
for him. A raid of Jones' bar was even made in the hope of finding
this suspect.
Sanders' testimony at the post-conviction hearing indicates that
it was Watts who bragged about the murder, not petitioner. It is
true that the bartender and the owner of the Ponderosa Tavern
testified at trial that it was petitioner who was in the bar with
Sanders, but the bartender had never seen "Slick" before, and the
owner was drinking the entire afternoon. Furthermore, the fact
remains that petitioner and Watts look very much alike.
Petitioner urges that, when the State did not reveal to him
Sanders' statement about meeting "Slick" at an earlier time and the
corroborative statements of
Page 408 U. S. 806
Thompson and Jones, it denied him due process. The Court answers
this by saying that the statements were not material. It is evident
from the foregoing that the statements were not merely material to
the defense, they were absolutely critical. I find myself in
complete agreement with Justice Schaeffer's dissent in the Illinois
Supreme Court:
"The defendant's conviction rests entirely upon identification
testimony. The facts developed at the post-conviction hearing
seriously impeached, if indeed they did not destroy, Sanders' trial
testimony. Had those facts, and the identifications of 'Slick'
Watts by Thompson and Jones, been available at the trial, the jury
may well have been unwilling to act upon the identifications of
Patricia Hill and Henley Powell. Far more is involved in this case,
in my opinion, than 'the following up of useless leads and
discussions with immaterial witnesses.' Certainly if Sanders'
identification was material, the . . . testimony of the other
witnesses which destroyed that identification [was] also material.
Consequently, I believe that the State's nondisclosure denied the
defendant the fundamental fairness guaranteed by the constitution.
. . ."
42 Ill. 2d at 88-89, 246 N.E.2d at 308. [
Footnote 2/4]
Page 408 U. S. 807
Petitioner also urges that the failure of the prosecution to
disclose the information concerning where the eyewitness Powell was
sitting when he allegedly saw petitioner is another instance of
suppression of evidence in violation of the Fourteenth Amendment.
Had this been the prosecution's only error, I would join the Court
in finding the evidence to be immaterial. But, if this evidence is
considered together with other evidence that was suppressed, it
must be apparent that the failure of the prosecution to disclose it
contributed to the denial of due process.
Even if material exculpatory evidence was not made available to
petitioner, the State argues that, because petitioner did not
demand to see the evidence, he cannot now complain about
nondisclosure. This argument is disingenuous, at best.
Prior to trial, petitioner moved for discovery of all statements
given to the prosecutor or the police by any witness possessing
information relevant to the case. Abs. 5. In explaining why such a
broad motion was made, petitioner's counsel stated that
"We want to circumvent the possibility that a witness gets on
the stand and says, 'Yes, I made a written statement,' and then the
State's Attorney says, 'But no, we don't have it in our
possession,' or they say, 'It's in the possession of Orlando Wilson
[Superintendent of Police, Chicago, Ill.],' or 'The Chief of Police
of Lansing.'"
Abs. 8. In
Page 408 U. S. 808
response to the motion, the prosecutor guaranteed defense
counsel and the court that he would supply defense counsel with
statements made either to the police or to the State's Attorney by
witnesses who were called to testify at trial.
Ibid. Based
on this representation, the motion for discovery was denied. Never
was there any implication by the prosecutor that his guarantee was
in any way dependent upon petitioner's making repeated and specific
requests for such statements after each witness testified at trial.
The prosecutor's guarantee certainly covered Sanders' statement. As
for the statements of the bartender and owner of the Ponderosa
Tavern and the statement and diagram of Charles Mayer, petitioner
clearly demanded to see these things before trial. The prosecution
took the position that it was bound to reveal only the statements
of witnesses who testified. Hence, it is hard to imagine what sort
of further demand petitioner might have made. Moreover, the very
fact that petitioner made his motion for extensive discovery placed
the prosecution on notice that the defense wished to see all
statements by any witness that might be exculpatory. The motion
served
"the valuable office of flagging the importance of the evidence
for the defense, and thus impos[ing] on the prosecutor a duty to
make a careful check of his files."
United States v. Keogh, 391 F.2d 138, 147 (CA2
1968).
In my view, both
Brady v. Maryland, 373 U. S.
83 (1963), and
Napue v. Illinois, 360 U.
S. 264 (1959), require that the conviction in this case
be reversed.
Napue establishes that the Fourteenth
Amendment is violated "when the State, although not soliciting
false evidence, allows it to go uncorrected."
Id. at
360 U. S. 269.
And
Brady holds that suppression of material evidence
requires a new trial "irrespective of the good faith or bad faith
of the prosecution."
Supra at
383 U. S. 87.
There can be no doubt that there was suppression of evidence by the
State, and
Page 408 U. S. 809
that the evidence that the State relied on was "false" in the
sense that it was incomplete and misleading.
Both before and during the trial, the prosecutor met with
Sanders and went over the statement that he had given the police
five days after the murder. Abs. 301, 315. Thus, it is apparent
that the prosecutor not only knew of the statement, but was
actively using it to prepare his case. There was also testimony at
the post-conviction hearing from the prosecution that it had
discussed the location where Powell was sitting when he allegedly
saw the murder. While the prosecutor could not remember whether or
not he actually had Mayer's statement and diagram in his
possession, he had some recollection that, before trial he was
informed of exactly where everyone at Powell's table was sitting.
Abs. 323. No attempt was ever made at trial to communicate this
information to the defense.
Moreover, seated at the prosecutor's table throughout the trial
was Police Lieutenant Turbin, who had investigated the case and who
was assisting the prosecution. At the post-conviction hearing, he
testified that, throughout the trial, he was not only aware of
Sanders' statement and Mayer's diagram, but also that he had them
in his file. He made no attempt to communicate his information to
the prosecutor or to remind him about the evidence.
When the State possesses information that might well exonerate a
defendant in a criminal case, it has an affirmative duty to
disclose that information. While frivolous information and useless
leads can be ignored, if evidence is clearly relevant and helpful
to the defense, it must be disclosed.
Obviously some burden is placed on the shoulders of the
prosecutor when he is required to be responsible for those persons
who are directly assisting him in bringing an accused to justice.
But this burden is the essence
Page 408 U. S. 810
of due process of law. It is the State that tries a man, and it
is the State that must insure that the trial is fair.
"A citizen has the right to expect fair dealing from his
government,
see Vitarelli v. Seaton, 359 U. S.
535, and this entails . . . treating the government as a
unit, rather than as an amalgam of separate entities."
S&E Contractors, Inc. v. United States,
406 U. S. 1,
406 U. S. 10
(1972). "The prosecutor's office is an entity and as such it is the
spokesman for the Government."
Giglio v. United States,
405 U. S. 150,
405 U. S. 154
(1972). [
Footnote 2/5]
See also
Santobello v. New York, 404 U. S. 257,
404 U. S. 262
(1971);
Barker v. Wingo, 407 U. S. 514
(1972).
My reading of the case leads me to conclude that the prosecutor
knew that evidence existed that might help the defense, that the
defense had asked to see it, and that it was never disclosed. It
makes no difference whatever whether the evidence that was
suppressed was found in the file of a police officer who directly
aided the prosecution or in the file of the prosecutor himself.
When the prosecutor consciously uses police officers as part of the
prosecutorial team, those officers may not conceal evidence that
the prosecutor himself would have a duty to disclose. It would be
unconscionable to permit a prosecutor to adduce evidence
demonstrating guilt without also requiring that he bear the
responsibility of producing all known and relevant evidence tending
to show innocence.
[
Footnote 2/1]
I find the constitutional question presented by the introduction
of this evidence to be much harder than the majority seems to. It
was uncontradicted at trial that the weapon introduced against
petitioner had no bearing on the crime with which he was charged.
It was, in fact, clear that the shotgun admitted into evidence was
a 16-gauge gun, whereas the murder weapon was a 12-gauge gun.
Despite the fact that the prosecution conceded this in a pretrial
bill of particulars, it did everything possible to obfuscate the
fact that the weapon admitted into evidence was not the murder
weapon. This was highly improper. The record also indicates that
the trial judge was confused as to why he thought the weapon should
be admitted. At one point he said,
"There was testimony here that this was a shotgun killing. And I
can see nothing wrong if they say that this defendant, who will be
identified by other people, was apprehended with this gun."
Abstract of Record (Abs.), 65. If the trial judge meant to imply
that, because the crime was committed with a shotgun, it was
sufficient to prove that the petitioner possessed any shotgun,
whether or not it was the murder weapon, he surely erred. But it is
impossible to tell from the record in this case precisely what was
intended, or whether the judge confused the jury when he admitted
the weapon. Although this highly prejudicial and irrelevant
evidence was introduced, and although the prosecution did its best
to lead the jury to believe that there was a relationship between
the murder weapon and the shotgun in evidence, the fact that
petitioner's counsel explained to the jury that the two weapons
were not identical is, on the very closest balance, enough to
warrant our finding that the jury was not improperly misled as to
the nature of the evidence before it.
[
Footnote 2/2]
It is true, as the Court states, that, following the shooting,
Powell followed the assailant into the street, but it is also true
that he never got closer than 50 to 60 feet of the murderer. Abs.
32. The strength of his testimony lay in the alleged opportunity he
had for close observation of the murderer while the crime was
committed.
Footnote 6 of the Court's
opinion implies that during the trial, the prosecution turned
over Mayer's diagram to defense counsel. But there is absolutely no
support for this implication in the record. While it is true that
the diagram was drawn on the back of the original statement given
by Mayer to the police, there is nothing to indicate that it was
ever recopied and made a part of any reproductions of Mayer's
statement. All indications are that it was not reproduced. At the
post-conviction hearing, the following testimony was adduced: the
police officer who aided the prosecution at trial indicated that he
had the original diagram in his file, Abs. 244-249; the two lawyers
who had represented petitioner at trial both swore that they were
given only Mayer's statement, not his diagram, Abs. 307, 328; and
the prosecutor testified that he did not know for sure whether he
gave the diagram to defense counsel, but that it was certain that
he did not supply the diagram if it was not in his file. Abs. 324.
Since the diagram was in the police officer's file, not the
prosecutor's, it is clear that it was never made available to
defense counsel, even though the prosecutor was aware of its
contents.
See infra at
408 U. S.
809.
[
Footnote 2/3]
The Court asserts that O'Brien may have been drunk. His
testimony at trial made it clear beyond doubt that, when the victim
ejected the man alleged to be the petitioner from the bar, this
witness was perfectly sober. Later, especially after the killing,
the witness drank heavily and became intoxicated. No one
contradicted this at trial.
[
Footnote 2/4]
Chief Judge Friendly has noted that, when the prosecution fails
to disclose evidence whose high value to the defense could not have
escaped the prosecutor's attention, "almost by definition the
evidence is highly material."
United States v. Keogh, 391
F.2d 138, 147 (CA2 1968).
See also United States ex rel. Meers
v. Wilkins, 326 F.2d 135 (CA2 1964).
The materiality of the undisclosed evidence in this case cannot
be seriously doubted. The State based its case primarily on the
eyewitness identifications of petitioner by a witness and patron in
the bar. Testimony of this sort based on in-court identification is
often viewed with suspicion by juries.
See McGowan,
Constitutional Interpretation and Criminal Identification, 12 Wm.
& Mary L.Rev. 235, 241-242 (1970). That testimony in this case
was subject to serious question -- indeed, petitioner premised his
defense in large part on a theory of misidentification. Coupled
with the contradictory statement made by O'Brien (
see
supra at
408 U. S.
803), the evidence showing that one of the witnesses may
not have had an adequate opportunity to observe, and that
petitioner may have been confused with another person named "Slick"
would certainly have been material to the defense's presentation of
its case.
[
Footnote 2/5]
In the recent decision in
Kastigar v. United States,
406 U. S. 441
(1972), holding that use immunity was coextensive with the Fifth
Amendment privilege against self-incrimination, the Court noted
that prosecutors may be responsible for actions of police officers
enlisted to aid a prosecution.