Summary
In McMullen v. Maxwell (1965), 3 Ohio St.2d 160, the plaintiff sought a writ of habeas corpus because of a suppression of evidence by the state, at his trial.
Summary of this case from State v. JaroszykOpinion
No. 39077
Decided July 21, 1965.
Habeas corpus — Criminal law — Fair trial — Misconduct of prosecutor — Suppression of evidence — Duty of prosecutor to disclose evidence.
IN HABEAS CORPUS.
This is an action in habeas corpus instituted in this court. In January 1956, petitioner, Edward A. McMullen, was tried and found guilty by a jury of the murder of one Cleveland Chipley during the perpetration of a robbery.
This action is based on the contention that the state suppressed certain material evidence, the existence of which did not become known to petitioner's counsel until March 1963.
From the evidence adduced at the hearing, the following facts appear:
On December 27, 1954, one Grover Cleveland Chipley was killed in Troy, Ohio, during the perpetration of a robbery. Chipley was shot three times and two of the three bullets were recovered, the third remaining in the body. The two recovered bullets were sent to the Bureau of Criminal Identification at London, Ohio, by the Troy chief of police in January 1955.
On February 20, 1955, there was a burglary at the Braun Brothers Packing Company in Troy, Ohio. Three men were apprehended shortly after this burglary, namely, Luther Williams, Van Gardner and Harold Bryarly. Four guns were recovered during the arrest. One of these guns was a 38-caliber Colt official police model with a four-inch barrel. These guns were sent to the Bureau of Criminal Identification at London. Ballistics tests were made and a report was sent to the chief of police that one of the bullets taken from Chipley's body had been fired from the Colt revolver. No report was made as to the other bullet. In May 1955, the Colt revolver and the two bullets were sent to the police department at Columbus, Ohio, for a ballistics report thereon. The police laboratory at Columbus ran a ballistics test and determined that both bullets taken from Chipley's body were fired from the Colt revolver. A written report of this ballistics test was sent to the chief of police at Troy, Ohio.
Upon investigation by the chief of police, it was found that this Colt revolver had disappeared from an Illinois penal institution, and a letter was introduced into evidence from the chief of police to the Illinois penal authorities showing that Bryarly had stated that he had obtained the gun about two years previously from an unknown man.
It is this Colt revolver and the ballistics reports in relation thereto that give rise to the present action. Neither the gun nor the ballistics reports were introduced into evidence, nor was their existence disclosed to the petitioner or his attorney. The prosecuting attorney admitted knowledge of the report from London but denied any knowledge of the Columbus report and of the letter in relation to the possession of the Colt 38. A slip of paper contained in the Chipley file allegedly turned over to the prosecuting attorney's office by the police department indicates that both ballistics reports were turned over to the prosecuting attorney. The prosecuting attorney testified that he was aware of the London report, and that he sent the microphotograph from the one bullet comparison test to the ballistics departments of Cincinnati and Dayton, both of which, from the photograph and in an oral report to him, said that the bullet did not come from the Colt 38, but the experts from both departments refused to testify.
Two ballistics experts testified in this action. Both testified that an adequate ballistics analysis could not be made from a photograph, and that an analysis could be made with the bullets only under a comparison microscope.
During the period of the investigation of the Chipley murder, the chief of police of Troy, assisted by the then city solicitor who subsequently became a special prosecuting attorney when petitioner was tried, had been investigating the murder.
In May 1955, one Ella Mae Maddy made a statement to the chief of police and the solicitor, which lead to the arrest of petitioner at the end of June 1955 for the murder of Cleveland Chipley.
An examination of the transcript of the testimony taken at petitioner's trial shows that the state had a strong circumstantial case against petitioner.
The evidence presented by the state showed that Chipley was murdered between 9 and 9:15 p.m. on December 27, 1954, and that a wallet containing several hundred dollars in bills of large denomination was taken from him. About 11 o'clock that same evening, petitioner appeared at one Cecil Maddy's house in Greenfield, some 80 miles from Troy, looking for Maddy. He was told that Maddy was in town. One Purdin, an employee of Maddy, testified that petitioner came to the smoke shop operated by Maddy about 12 o'clock midnight and picked up a check he had previously written, giving Purdin a 50-dollar bill. Purdin testified also that petitioner gave him a snub-nosed Colt revolver and asked him to return it to Maddy. The testimony of the state's witnesses then showed the following sequence of events:
Petitioner went to Ada's bar where he met Maddy in a back room. Maddy's wife testified that petitioner at that time was wearing an air-force jacket, that she brought their car to the back of the building, that petitioner and Maddy disappeared, returning to Ada's about 30 to 45 minutes later, and that petitioner had changed clothes during such time. She testified also that they stayed in the bar until it closed and then went to Maddy's house, and that petitioner then became sick and went to bed. She testified that her husband called her the next day and told her to burn the air-force jacket and trousers which were at the house, and that petitioner asked her to burn them.
Maddy's son testified that he was in bed on the night of the murder, when he heard his father and another man come in, and that he stayed in bed and did not see the man accompanying his father. He testified further that they stayed for about a half-hour and left. He then got up and in going into the bathroom found an air-force jacket and a wallet containing Chipley's driver's license in the pocket of the jacket. He then went into the bedroom where he saw his father's snub-nosed gun lying on the bed, with three chambers fired.
Mrs. Maddy testified as follows:
"Q. Did you have any conversation with Mr. McMullen at that time? A. I walked in and he looked at me, he was holding up his left hand, and he said — you want me to say his exact words?
"Q. What was his exact words? A. He said `The son-of-a-bitch pulled a rod on me but I don't think he will be able to pull it on anyone else.'
"* * *
"* * * He [petitioner] said `That's right, Mrs. Maddy.' I said `Have you heard the news?' and he said `That's right, I have read the paper.' I said `Eddy, is this what you did?' and his face shook and he turned white and he said `Yes, I had to, Mrs. Maddy. It was me or him. He pulled a rod on me and it was my life or his.'
"* * *
"Q. How do you know it was your husband's [snub-nosed] gun that was used here in Troy? A. He told me it was.
"Q. How long after December 27 did he tell you this? A. He told me the next night."
She testified further that shortly after the murder her husband gave her $710 to give to the petitioner, telling her that he had been holding it for him.
The state introduced also the testimony of a boy who had been visiting at Chipley's residence on the night of the murder. This residence was close to the concrete block building where Chipley was murdered. The boy testified that immediately after the shots, while standing on the back porch of Chipley's home, he saw a man come out of the building. He had picked petitioner out of a lineup as a man who resembled the one who had left the building after the shots were fired.
In addition to this evidence, the state introduced evidence of a polygraph test to which petitioner had submitted by agreement of his counsel. The results of this test indicated that petitioner was guilty of the robbery and murder of Chipley.
No murder weapon was introduced by the state. It was apparently the state's theory that petitioner had borrowed Cecil Maddy's snub-nosed Colt 38 and had used it in the perpetration of the murder. A snub-nosed Colt 38 was introduced into evidence as a gun similar to the one petitioner allegedly carried on the night of the murder. A snub-nosed revolver was the only weapon referred to by the state in its evidence.
In her statement to the police, Mrs. Maddy said that her husband had thrown his gun, the snub-nosed 38; into the creek.
On behalf of petitioner, evidence of an alibi was presented. Petitioner contended that on the night of the murder he was with his wife visiting her sister at Rainsboro, some 100 miles from Troy. Several witnesses testified as to this, primarily relatives of petitioner's wife who were present at her sister's house that night. There was testimony of a neighbor of the sister which corroborated this story. Although there were minor inconsistencies in their stories, they were no greater than could be expected after the lapse of a year. Petitioner presented also as a witness a filling station operator who testified that on the evening of the murder a young man stopped at his station and inquired as to the whereabouts of Chipley's store. He testified that petitioner was not the boy who stopped, that the boy was not over five feet, five inches in height, and that petitioner was much taller than that. He testified also that the boy who stopped at his station had short dark hair. The evidence shows that petitioner's hair is sandy.
The filling station operator testified that he called the police the next morning and reported this fact.
This then was the evidence presented at petitioner's trial for murder.
So far as the suppression of evidence is concerned, the evidence in this habeas corpus case establishes the following facts:
That as early as June 1955, prior to petitioner's arrest, the police had in their possession a gun and a ballistics report from London, which showed that at least one of the bullets taken from Chipley's body had been fired from such gun, and a report from the Columbus police laboratory, which showed that both bullets had been fired from the gun; that the special prosecuting attorney who helped prosecute petitioner assisted the chief of police in his investigation; that the prosecuting attorney was aware of at least the London report; that the existence of this gun and the ballistics report was not introduced into evidence nor was their existence made known to the defense; and that the only evidence in relation to the murder weapon introduced by the state at the trial showed that petitioner was carrying a gun, on the night of the murder, that was of a different type from that identified by the ballistics report as the one from which the murder bullets had been fired.
It is upon these facts that the instant case is presently before this court.
Mr. William M. Dixon and Mr. William H. Thornburgh, for petitioner.
Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
In this case petitioner contends that he was denied a fair trial because the prosecution had knowledge of evidence favorable to petitioner which it failed to disclose. The evidence in question consisted of ballistic tests which indicated that the murder weapon was a 38-caliber long barreled revolver which the prosecutor had in his possession and for which he had no proof of connection with petitioner.
It should be pointed out that the question raised here involves an evidentiary matter which could not come before the court on an appeal, and the time has long passed in which a motion for a new trial could be filed on the basis of newly discovered evidence. Thus habeas corpus affords the only post-conviction remedy available to this petitioner. See Case v. Nebraska, 33 Law Week 4498, decided by the Supreme Court of the United States on May 24, 1965.
Petitioner bases his right to relief on the Fourteenth Amendment of the Constitution of the United States which requires that no person shall be deprived of his liberty without due process of law. Part of the required due process is that an accused be granted a fair trial.
Misconduct of the prosecutor at trial may deprive the accused of a fair trial. The prosecutor may not knowingly employ false testimony or fabricated evidence to obtain a conviction. Pyle v. Kansas, 317 U.S. 213; Mooney v. Holohan, Warden, 294 U.S. 103. Neither may he deliberately suppress or conceal from the defense evidence which might tend to acquit the accused. United States, ex rel. Almeida, v. Baldi, 195 F.2d 815, 33 A.L.R. 2d 1407.
Ordinarily the prosecutor need only produce and present evidence which tends to prove guilt, relying on the defense to produce all exculpatory evidence. See State v. Rhoads, 81 Ohio St. 397, 424. Under some circumstances, however, if the prosecutor becomes aware of evidence favorable to the accused he may have a duty to disclose it in order that the defense may be adequately presented. Brady v. Maryland, 373 U.S. 83; United States, ex rel. Thompson, v. Dye, Warden, 221 F.2d 763; United States, ex rel. Almeida, v. Baldi, 195 F.2d 815; annotation, 33 A.L.R. 2d 1421.
It is important to distinguish between cases involving active misconduct of the prosecutor, such as employing perjured testimony or deliberately concealing evidence from the accused, and cases of passive nondisclosure. Cf. Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842, 847.
"* * * [The prosecutor] may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v. United States, 295 U.S. 78, 88.
A prosecutor would never be justified in knowingly using perjured testimony or fabricated evidence. In most instances, however, he would be justified in ignoring evidence which is favorable to the defense. A criminal prosecution is an adversarial proceeding in which the participants are normally concerned only with the presentation of one side. The prosecutor may and should prosecute to the best of his ability, relying on the defense to produce all evidence tending to acquit the accused. It is only under certain circumstances that the prosecutor has a duty to disclose to the defense evidence that he has discovered.
Whether the prosecutor has a duty to disclose evidence which is favorable to the accused and whether his failure to do so constitutes a denial of due process will depend upon the particular circumstances of each case.
"* * * It can be said that the prosecutor must not act in an essentially unfair way. But this is an area in which the question of fundamental fairness depends so much upon the facts of the particular case that a precise rule cannot be devised.
"It seems likely that many situations will arise in which a prosecutor can fairly keep to himself his knowledge of available testimony which he views as mistaken or false. But there are other circumstances in which a prosecutor must, or certainly should know that even testimony which he honestly disbelieves is of a type or from a source which in all probability would make it very persuasive to a fair minded jury." United States, ex rel. Thompson, v. Dye, Warden, supra, 221 F.2d 763, 769 (concurring opinion).
Although no hard and fast rule can be set forth defining when the prosecutor has a duty to disclose evidence, certain guidelines can be deduced from the cases. If the testimony of a prosecution witness is perjured and the prosecutor knows, or has good reason to believe, that the testimony is false, he must either disclose the falsity of the testimony or make available to the defense the means to do so. Napue v. Illinois, 360 U.S. 264; Alcorta v. Texas, 355 U.S. 28; People v. Savvides, 1 N.Y. 2d 554, 136 N.E.2d 853.
The duty to disclose may also arise where the prosecutor has knowledge of evidence which would raise serious doubts in the mind of any reasonable prudent person in his position, as to the validity of evidence which has been introduced. This does not mean that the prosecutor must disclose every discrepancy between the evidence introduced and the facts as he knows them. See Application of Landeros, 154 F. Supp. 183. In order for the nondisclosure to amount to a denial of due process the evidence must be vital and material to the issue of guilt or penalty. United States, ex rel Thompson, v. Dye, Warden, supra (211 F.2d 763); United States, ex rel. Almeida, v. Baldi, supra ( 195 F.2d 815); United States, ex rel. Montgomery, v. Ragen, 86 F. Supp. 382.
In the instant case, the prosecution proceeded on the theory that the killing had been committed with a .38-caliber snub-nose revolver belonging to Cecil Maddy, despite ballistics tests which showed that this was not the murder weapon. These tests showed that the bullets taken from the body of the victim were fired from a .38 revolver with a four-inch barrel.
The reliability of ballistics tests should have caused serious doubts in the mind of the prosecutor with reference to the use of the Maddy gun in the killing. However, he neither disclosed the existence of these tests nor changed the theory on which he presented his case. On the contrary, the police chief testified that no tests were made of the bullets and the prosecution introduced a snub-nose revolver as a weapon similar to the gun in the possession of petitioner on the night of the murder.
Testimony at the trial indicated that there were three bullet wounds in the body of the victim. Two bullets, both .38 caliber slugs, were recovered. Three witnesses testified that on the night of the murder petitioner had a snub-nose .38 caliber revolver which they recognized as the Maddy gun. One testified that the gun had three chambers fired.
The jury could have inferred from the introduction into evidence of the snub-nose revolver and from the above testimony that the snub-nose revolver in the possession of petitioner on the night of the murder was the murder weapon. The ballistics tests, which the prosecutor failed to disclose, showed that the murder weapon was not the Maddy gun but a long-barrel revolver. The prosecutor had no evidence to connect petitioner with the long-barrel revolver. Under these circumstances, if the excluded evidence had been introduced it might have cast a reasonable doubt in the minds of the jurors as to the guilt of the accused.
Since the excluded evidence in the instant case was of such a substantial nature, the failure of the prosecutor to disclose it deprived petitioner of his right to a fair trial. Petitioner should be remanded to the Court of Common Pleas for further proceedings according to law.
Petitioner released from custody of respondent.
TAFT, C.J. MATTHIAS, O'NEILL, HERBERT and BROWN, JJ., concur.
SCHNEIDER, J., dissents.