Opinion
No. C 00-3317 TEH (pr)
November 25, 2002
INTRODUCTION
Bruce Edward Simons, formerly a California prisoner, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The case is now before the court for consideration of the petition and for consideration of Simons' motion for discovery and for an evidentiary hearing. The court will deny the petition on the merits and deny the motion for discovery and for an evidentiary hearing.
BACKGROUND
"At about 3 a.m. on March 21, 1993, East Palo Alto Police Officer Reich stopped defendant's car for an expired registration and failure to signal for a left turn. Defendant presented an expired driver's license. After the officer completed the traffic citation, defendant walked toward his car, as if to drive away. The officer told defendant he would not be allowed to drive and the automobile would have to be towed. Defendant became angry and ran to his car." California Court of Appeal opinion, p. 2. Defendant drove away, contrary to officer Reich's command. Evidence was presented that Simons dragged officer Reich for 30 feet when he drove away and that Simons drove for a while before coming to a stop, at which time he struck officer Reich with his car. (As will be discussed below, Simons has obtained evidence that casts grave doubt on officer Reich's statements that he was hit or harmed by Simons or Simons' car.) Simons restarted his car and backed onto the freeway and made contact with another police car before spinning around and heading back onto the freeway in the proper direction. Id.
Officers pursued defendant into the city of Mountain View. There, defendant left the freeway at 70 to 80 miles per hour and led several officers on a chase through the city. Officer Peardon testified that, at one point, defendant backed into his squad car. Finally, defendant jumped out of his still-moving vehicle and fled on foot. His car continued until it crashed into a tree.
As defendant fled into an apartment complex, Officer Peardon pointed his gun at him and ordered him to the ground. Defendant turned with a screwdriver in hand, and said, "[F]uck you. Shoot me." Defendant then ran into the building and into his mother's apartment. His mother testified defendant entered the apartment saying, "They are trying to kill me, they tried to push my car off the road."
After Peardon and Reich broke open the apartment door, defendant held them at bay with the screwdriver. . . . [¶] Although several officer arrived defendant continued to hold the screw river in a threatening way and ordered the officers to stay back. A police dog was brought into the apartment, but defendant threatened to stab the dog. Finally, officers distracted defendant by throwing a chair at him. After a brief struggle, he was subdued.Id. at 2-3.
A jury trial was held in San Mateo County Superior Court in 1994 at which Simons was convicted of one count of willful and reckless evading a peace officer and two counts of exhibiting a deadly weapon to resist arrest by a peace officer. See Cal. Veh. Code § 2800.2; Cal. Penal Code § 417.8. He also was found to have suffered two prior serious felony convictions. The jury found Simons not guilty of three counts of assault with a deadly weapon on a peace officer and not guilty of hit-and-run and was unable to reach a verdict on the charge of interference with a police dog. Simons was sentenced to a term of 13 years in prison. He appealed his conviction. The California Court of Appeal affirmed Simons' conviction and the Supreme Court of California denied his petition for review. He also sought collateral relief in state court before filing his federal habeas petition.
DISCUSSION
Respondent wants the court to decide that the petition is untimely based on a new argument he neglected to include in his motion to dismiss; respondent wants the court to decide that the petition is procedurally defaulted; Simons wants the court to permit discovery; and Simons wants the court to hold an evidentiary hearing to present the evidence he expects to find during discovery. But resolution of all of these matters would not affect the fact that the sole claim in the petition — a Brady claim — must be denied because the allegedly withheld evidence was not "material."
Simons claims that he has unearthed evidence that officer Reich lied and fabricated evidence in his case. Specifically, Simons has uncovered substantial evidence that the East Palo Alto police department did not believe officer Reich's account of the early morning incident and denied a claim for medical bills filed by officer Reich, that an internal affairs investigation was done of the incident by the East Palo Alto police department, and that officer Reich later sued the police department for defamation based on the allegations against him. Although Simons has some of the material from the investigation, he does not have all of the material because the prosecution failed to turn it over to him. As a result, Simons and this court know the basic contours of what the evidence is, but have not seen all of that evidence. The court assumes for purposes of argument that the evidence uncovered by Simons and other evidence that could be uncovered by Simons if this court ordered discovery undermine the believability of officer Reich's account of the events that occurred on the morning Simons was arrested. Even doing so, however, will not result in victory for Simons because there were other witnesses to the crimes of which he was convicted — i.e., Simons was pursued during the police chase by more officers than just officer Reich and he used the screwdriver to keep more officers than just officer Reich at bay — and Simons did not dispute essential facts. The dispositive point in this case is that the Brady claim fails for lack of materiality of the suppressed evidence. The Brady analysis follows.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court 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." The Supreme Court has "since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 (1985)."Strickler v. Greene, 527 U.S. 263, 280 (1999).
Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial. See Kyles v. Whitley, 514 U.S. 419, 434 (1995). A violation will be established under Brady by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Kyles, 514 U.S. at 435. Materiality is defined in terms of suppressed evidence considered collectively, not item by item. See id. at 436; Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (en banc). Once constitutional error has been found under Bagley, it cannot subsequently be found harmless under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). See Kyles, 514 U.S. at 436.
The evidence withheld from Simons would likely establish that Reich lied about at least being dragged or struck by Simons' car. It simply cannot be said that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Several reasons lead to this conclusion of a lack of materiality.
First, Reich did not cause Simons' criminal conduct. Simons argues that the events following Reich's misconduct were "proximately caused by that misconduct — which had led petitioner to fear for his own safety and act reasonably in accordance with that fear," and "his actions were in fact a reasonable response to Reich's life-threatening misconduct (e.g. People v. S.Ct. (Biggs; 1971), 19 Cal App.3d 522)." Petition, p. 18; Addendum to Petition, p. 41. Although Simons tries to rationalize his behavior, he comes nowhere close to showing that he did not commit the crimes or that he has a recognized legal defense under California law to the crimes he committed. The Biggs case he cites is wholly inapposite.
Second, officer Reich was not the lone witness against Simons. Several police officers and a civilian witness testified. East Palo Alto police officer Reich testified that he made the initial traffic stop, was part of the car chase, and chased Simons into his mother's apartment. East Palo Alto police officer Gurerrez testified that he heard about the car chase on his police radio and joined in the pursuit when the cars went by on southbound Highway 101 and stopped to stay with the police cars when Simons went into his mother's apartment complex on foot. East Palo Alto police officer Peardon testified that he participated in the car chase and pursued Simons on foot into his mother's apartment. East Palo Alto police sergeant Destefano testified that he joined the car chase, took part in the encounter in Simon's mother's apartment, and took part in subduing Simons. Palo Alto police officer Larry Buck testified that he was the handler of police dog Argus and tried to use Argus to subdue Simons in his mother's apartment. Mountain View police officer Kevin Costa testified he joined the car chase and eventually entered Simon's mother's apartment while Simons was still there. Evidence technician Susan Raines testified about physical evidence on Simons' car. San Mateo County forensics lab criminalist Elliott Kollman testified about his examination of Reich's gun belt on which he found insufficient paint to make a match to Simons' car, testified about the marks on the car door, and testified about marks on Reich's boots. The defense presented several witnesses. East Palo Alto police detective Anthony Adams testified that he was not involved in either the car chase or the foot pursuit but had heard officer Reich describe what had happened during the traffic stop and had observed that Reich's uniform and boots did not look like those of one who had been dragged by a car. East Palo Alto police officer Tracy Frey testified that he interviewed Reich about the incident, prepared a report at his sergeant's direction, was surprised that there was no excessive damage to the pants of the officer who claimed to have been dragged, and told his captain that Reich had given two different accounts of being dragged by Simons' car. Mountain View police officer Michael Mooney testified that he was not involved in the pursuit but had taken a traffic accident report regarding one collision between Peardon's car and Simons' car and Peardon had not indicated to him whether there was another collision between the cars. Betty Simons testified that her son said "they are trying to kill me" and "they tried to push my car off the road" when he entered her apartment, she did not see Simons carrying a screwdriver when he entered, and she did not see any marks on Reich's uniform or boots. East Palo Alto police officer John Norden testified that he talked to Reich about the incident a couple of times, Reich's uniform did not look like what he expected of someone who had been struck and dragged by a car, and he could not see any swelling of Reich's finger when shown to him.
Third, there was plenty of evidence independent of Reich's testimony to support the convictions. Although sufficiency of the evidence absent the tainted witness' testimony is not the standard for materiality, see Strickler, 527 U.S. at 290, it may be considered in the court's analysis of the materiality question. Consider the independent evidence of the criminal acts of Simons:
The first crime of which Simons was convicted was willful and reckless evading a peace officer, which the prosecutor argued was proven by "pretty much the defendant's entire course of driving throughout the entire incident." RT 371. Officer Gurerrez testified that he joined the car chase in progress and when he got there Simons' car came to a stop facing the wrong way of traffic on an on/off ramp area near the freeway, Simons' car backed up when officer Reich approached him with gun drawn and, as it was backing up, Simons' car encountered another police car which attempted to push Simons' car against a sound wall, RT 172-175. Gurerrez also testified that Simons then "continued to drive forward and backwards, trying to get away from the unit that was blocking his way" and eventually made a 180-degree turn and drove away. RT 175-176. Gurerrez also testified that the chase later moved to city streets and "[w]e came to a point where there was a center divider, he was going around it and around it" once or twice and then steered around Gurerrez's car which had been stopped to block Simons. RT 177. Officer Peardon also testified about the car chase. He testified he saw Simons' car pointed in the wrong direction on an on-ramp, Simons' car pushed back by sergeant Destefano's car, and Simons doing a 180-degree turn to get away. RT 187-188. Peardon testified that, as he was pursuing Simons, Simons exited the freeway going between 70-80 miles per hour — so fast that Peardon didn't think Simons would be able to negotiate the off ramp. RT 189. Simons then drove on city streets at speeds of up to 55 miles per hour and at one point, a van in the road had to pull into the dirt median to get out of the way of the car chase. RT 190. Officer Peardon testified that Simons made a speedy turn on to another street, came to a stop and backed into the front of Peardon's car at about 10 miles per hour. RT 191. Peardon's car had police lights flashing and the siren sounding. RT 193. Peardon also testified that Simons (being pursued by several police cars) went around a particular area three times, drove into and through a shopping center parking lot, drove out of the parking lot, and jumped out of his slow moving car to run away. RT 194-195. Sergeant Destefano testified that he joined the car chase when Simons' car approached him at a slow speed in the wrong direction on a freeway ramp; Destefano bumped and pushed Simons' car backwards until Simons did a 180-degree turn and drove off. RT 242-245. Officer Costa testified that by the time the car chase reached him, the cars were travelling on the wrong side of the road, and that when Simons tried to turn at an intersection, his rear tire hit a curb and caused his car to slide sideways at which point Simons' car was hit by a police car at about 15-20 miles per hour. RT 269, 272. The police cars in pursuit had their sirens sounding and red lights flashing. RT 271, 277. Officer Costa testified that the pursuit went through a parking lot in the wrong direction and back out on a street; he also saw Simons' car strike a tree after Simons had jumped out. RT 274. Evidence that would have completely undermined Reich's credibility (or even kept Reich off the witness stand entirely) would not undo the independent evidence from officers Gurerrez, Peardon and Costa and sergeant Destefano that established reckless driving to evade a peace officer.
The other two crimes of which he was convicted were two counts of exhibiting a deadly weapon to resist arrest by a peace officer. The prosecutor argued that these could be proven by evidence that Simons held officers Reich and Peardon at bay with a screwdriver while he was standing in his mother's kitchen. The prosecutor also argued that, if the jury preferred, it could find him guilty of one of these counts based on evidence that Simons held sergeant Destefano at bay with a screwdriver while he was standing in the kitchen in his mother's apartment. See RT 379-380. Officer Peardon testified that he pursued Simons and entered Simons' mother's apartment with officer Reich in search of Simons. RT 198-199. When Peardon entered the apartment, he saw Simons holding the same screwdriver he had held at the front door of the apartment building when Peardon encountered him earlier. RT 200. Simons moved into the kitchen and the officers, who had their guns drawn, ordered him to drop the screwdriver and give up. RT 201. The officers threatened to shoot Simons, to which he responded "go ahead and shoot me." RT 201. Peardon testified that, until he was subdued, Simons kept the screwdriver in his hand and had raised the screwdriver up at them when they first entered the apartment. RT 218-219. Peardon also testified that, while Simons held the screwdriver in the kitchen, they didn't just walk in and take him into custody because they were afraid for their safety. RT 220. Destefano arrived a few moments after Reich and Peardon and found the officers had contained Simons in the kitchen area of the apartment. RT 247. At the time, Simons "was holding out a screwdriver in a fighting stance, holding officers at bay and the officers were barking out commands for him to drop it and both had their weapons drawn." RT 248. Simons was swearing and yelling "shoot me" and refusing to put down the screwdriver because he was going to be arrested. RT 249. Destefano testified that he discussed using a police dog because Simons "was threatening us with a screwdriver." RT 252. Destefano testified the kitchen was a small six foot by four foot U-shaped alcove, with the police standing at the entry blocking Simons' exit. RT 250-251. Officer Costa arrived at the apartment when there were already about four officers there and saw Simons in a kitchen alcove where he was holding a screwdriver. RT 275. He participated with other officers in rushing Simons and disarming him. RT 276. Simons' mother testified that she did not see Simons carrying a screwdriver when he entered the apartment, and that she was outside the apartment in the hallway during the standoff in the kitchen. As with the first crime, evidence decimating Reich's credibility would not undo the fact that officers Peardon and Costa and sergeant Destefano testified that they witnessed Simons exhibiting the screwdriver to keep the officers (including officer Reich) at bay.
Fourth, defense counsel was able to use portions of the evidence that had been disclosed to impeach Reich by showing that other officers were skeptical of Reich's account of the dragging. Officers Adams and Frey testified that Reich had given inconsistent accounts of the dragging incident. Officers Adams, Frey and Norden testified that Reich's physical appearance did not match what would be expected for one who claimed to have been dragged by a car. And defense counsel presented evidence from the criminalist that there was no strong evidence to connect Reich's uniform belt to the paint on Simons car. While Simons may think there was enough undisclosed evidence that, had it been disclosed, he would have had a sledgehammer to dent Reich's credibility, the evidence which had been disclosed about the internal investigation gave his defense attorney a smaller hammer to dent Reich's credibility, but that was enough — as evidenced by Simons' acquittal on the counts that turned on Reich's testimony.
Fifth, essential facts are undisputed. Simons admits that there was a traffic stop by officer Reich; indeed, he argues that he fled from that stop to avoid an anticipated stranding in a high crime area in which he was driving in the wee hours of the morning. See Addendum To Petition, p. 4. Although Simons did not testify at trial, his defense "never disputed that he led police on a high-speed chase through several communities, ran a red light, lost control of his vehicle, traveled the wrong way on a freeway ramp, and ultimately abandoned his car, which continued unattended until it struck a tree." Cal. Ct. App. opinion, p. 12. And Simons "never disputed that he used the screwdriver to fend off the police," id. at 9, although he did argue that it was not a dangerous weapon and he was not close enough to use it.
Sixth, Reich's alleged lies about being dragged were not even known to Simons at the time and certainly did not cause him to drive recklessly and certainly did not cause him to hold police at bay with a screwdriver. Reich's apparently feigned injuries that night would not have been known to Simons and Simons could not reasonably base his actions on facts of which he was unaware. Simons' apparent ability to disprove that he dragged or struck officer Reich is largely irrelevant, as he was not convicted of such a crime. If Simons had been convicted of a crime based on dragging Reich or if Reich had been a key witness on the crimes of which Simons actually was convicted, Simons' discovery request and Brady claim would be received quite differently by this court.
Permeating Simons' whole petition is the idea that he should get a pass on everything because he encountered a bad cop. But that is not the law. His guilt of the offenses of which he was convicted cannot be erased as some sort of compensation for Reich's apparent misconduct. Simons assumed the worst and bolted from the traffic stop. Simons essentially admits that he led the police on a high speed and dangerous chase and that he kept the police at bay with a screwdriver, but contends that Reich caused the whole mess. His contentions in state court that the events did not legally amount to the crimes charged were rejected by the state court and do not show innocence.
There is not a reasonable probability that, had all the evidence of the investigation been disclosed to the defense, the result of the proceeding would have been different. The court is confident that Simons received the fair trial to which he was entitled on the three counts of which he was convicted. Thus, the court denies the Brady claim because the evidence not disclosed was not material. That conclusion resolves the various other arguments the parties raised. Specifically, the court need not decide whether to entertain respondent's new untimeliness argument or whether the petition is procedurally defaulted. And the court will deny the request for discovery and an evidentiary hearing because each would be an exercise in futility.
CONCLUSION
The petition for writ of habeas corpus is denied on the merits. Simons' motion for reconsideration of denial of request for discovery order and evidentiary hearing is denied. (Docket #31.) The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT
THELTON E. HENDERSON, United States District Judge
The petition for writ of habeas corpus is denied on the merits.
IT IS SO ORDERED AND ADJUDGED.